s.85 gang vMBNA

[iwannabedebtfree]

thought id open up a new thread for all those taking action under section 85 CCA 1974 against MBNA, sort of a support and update thread

 

notice of default was faxed off today, with a copy going in the post to Mr Wareing (bet he hates the attention he gets), so hopefully i will get the usual letter saying we have 30 days to deal with your complaint under FSA rules! who knows, but good luck to all that are taking back the right!

[ladybird17]

good idea!

 

There seems to be 2 camps on this - those that are saying they are AUTOMATICALLY in default so no need to issue notice, and others that are issuing notices - same result different route I guess. Keep them running around though won't it! They now have 4 days to respond to my prelim. letter re S85 -and of course, will be interested to hear outcome of Battleaxe's call with dear old Bill on Thursday.

[iwannabedebtfree]

hi Ladybird

 

it will be interesting to hear from Battleaxe on thursday! i understand your point re: default. from reading the legislation my personal thought is that the default is automatic, but i decided to send the default incase MBNA ever go to court to try to say that they had not received the default.

 

A company the size of MBNA must know about the CCA and employ their legal team to understand the legalities of CCA and s85. They have obviously overlooked this, and hoped that their customers are none the wiser! It would be nice to be a fly on the wall within MBNA HQ when they discuss how to deal with s85. as i am only dealing with one re-issue of a card, yet i know i was re-issued a few cards! good luck with your pre-lim.

[Cornucopia]

hi Ladybird

 

it will be interesting to hear from Battleaxe on thursday! i understand your point re: default. from reading the legislation my personal thought is that the default is automatic, but i decided to send the default incase MBNA ever go to court to try to say that they had not received the default.

 

A company the size of MBNA must know about the CCA and employ their legal team to understand the legalities of CCA and s85. They have obviously overlooked this, and hoped that their customers are none the wiser! It would be nice to be a fly on the wall within MBNA HQ when they discuss how to deal with s85. as i am only dealing with one re-issue of a card, yet i know i was re-issued a few cards! good luck with your pre-lim.

 

Hi there guys, good idea for thread! I have mentioned S85 and sent the wording as an attachment to my letter Bill. Will issue default if necessary, depending on response to my letter.

[ladybird17]

Battleaxe has had her conference call cancelled for tomorrow as Bill "has been called out of office" - they have asked her to arrange another day next week, but she is in two minds whether to go ahead with it now - who knows what they're planning?

[Cornucopia]

Battleaxe has had her conference call cancelled for tomorrow as Bill "has been called out of office" - they have asked her to arrange another day next week, but she is in two minds whether to go ahead with it now - who knows what they're planning?

 

Morning Ladybird, I have already posted on her thread. I don't think she should enter into any more phone conversations with them. I would keep everything in writing and let them defend themselves in Court. If they can.....that is!

[iwannabedebtfree]

yes it does seem that MBNA are playing their usual game of hide and seek, usually they come out when the courts catch them with a nice N1!

[tricky0000]

i want to hit MBNA with everything i can and a s.85 sounds nasty.

 

but what exactly is it?

[ladybird17]

Section 85 (Consumer Credit Act) states that every time you are issued with a new card (i.e. subsequent to the first, - card expired, lost, issue of new chip & pin etc) you should be sent, with it, a copy of the original Agreement. Generally, this DOES NOT happen. It appears, therefore, that the lender would be in breach of the CCA and has defaulted under the terms of the act. Hope this makes sense!

 

 

If I have been of any help, please click the scales on the bottom left hand corner, - I'm not an expert, these are just my understandings, or opinions!

[iwannabedebtfree]

will/bill will get a copy of my notice of default under s.85 tomorrow

[Stornoway]

Section 85 (Consumer Credit Act) states that every time you are issued with a new card (i.e. subsequent to the first, - card expired, lost, issue of new chip & pin etc) you should be sent, with it, a copy of the original Agreement. Generally, this DOES NOT happen. It appears, therefore, that the lender would be in breach of the CCA and has defaulted under the terms of the act. Hope this makes sense!

 

 

If I have been of any help, please click the scales on the bottom left hand corner, - I'm not an expert, these are just my understandings, or opinions!

So Ladybird if they are in breach / default of the act how does that benefit the account holder ?

[Cornucopia]

So Ladybird if they are in breach / default of the act how does that benefit the account holder ?

 

As I understand it Stornoway, they can't enforce the debt and they are in breach if they do not provide the agreement with the reissue of the card within one month of said reissue.

 

Correct me if I'm wrong people...........!

 

In my view, this is why MBNA are so twitchy with Battleaxe (see her thread, Battleaxe does MBNA). She is a brave girl and is hitting them where it hurts! Will be interesting to see how they react to her S85 Default.

[Stornoway]

As I understand it Stornoway, they can't enforce the debt and they are in breach if they do not provide the agreement with the reissue of the card within one month of said reissue.

 

Correct me if I'm wrong people...........!

 

In my view, this is why MBNA are so twitchy with Battleaxe (see her thread, Battleaxe does MBNA). She is a brave girl and is hitting them where it hurts! Will be interesting to see how they react to her S85 Default.

Thanks

[Cornucopia]

Thanks

 

No probs. Are you going to follow suit?! I have mentioned it in my complaint to Bill/Will but will not do it til I get a response (see my thread MBNA Nightmare!).

 

I personally think that everybody should hit them with it and it will have a huge impact.

 

Go on Stornoway, I dare ya!!!!

[crackberry]

cool; MBNA are crooks

[crackberry]

s.85:

 

Duty on issue of new credit-tokens.

 

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

(2) If the creditor fails to comply with this section--

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

(b) if the default continues for one month he commits an offence.

(3) This section does not apply to a small agreement.

Notes:

 

Act excluded by S.I. 1983/1553, reg. 2(7A) (as inserted by S.I. 1984/1600, reg. 2(e)), S.I. 1989/869, arts. 2(1), 3(1), 4(1), 5, 6

 

 

NB PLEASE BE AWARE THAT THERE IS A CONSUMER CREDIT ACT 2006. Not yet read it but it modifies CCA 1974. Not yet in force, but parts of it come into force in April 07 I think.

[Cornucopia]

s.85:

 

Duty on issue of new credit-tokens.

 

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

(2) If the creditor fails to comply with this section--

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

(b) if the default continues for one month he commits an offence.

(3) This section does not apply to a small agreement.

Notes:

 

Act excluded by S.I. 1983/1553, reg. 2(7A) (as inserted by S.I. 1984/1600, reg. 2(e)), S.I. 1989/869, arts. 2(1), 3(1), 4(1), 5, 6

 

 

NB PLEASE BE AWARE THAT THERE IS A CONSUMER CREDIT ACT 2006. Not yet read it but it modifies CCA 1974. Not yet in force, but parts of it come into force in April 07 I think.

 

Hello, have just had a very quick scan of the 2006 Act. In the summary of modifications, I can't see any reference to Section 85.

 

Don't take my word for it though, have a look guys!

[m55dlc]

Just subscribing to this thread. For all of you who haven't read it (and it is enormous), read the 'Consumer Credit Act Agreements' where all aspects of s85 have been discussed to death (I realise most people on here are subsribers to that thread, but I'm just advertising that to other people who may be reading this and would like to know more of the background).

 

I sent off my s85 default to MBNA on the 29th January 2007 (along with 2 other requests (S.A.R - (Subject Access Request) and CCA 1974 s78 ) in separate envelopes. Will hit them with further letters in due course to really, really stir up the mix.

 

And all because a precocious little irish supervisor I spoke to thought he would be clever and talk over me and try to brow beat me.

[thecornflake]

NB PLEASE BE AWARE THAT THERE IS A CONSUMER CREDIT ACT 2006. Not yet read it but it modifies CCA 1974. Not yet in force, but parts of it come into force in April 07 I think.

 

This won't affect this much as it will only apply from the date it comes in. New laws don't apply backwards in time so it will only cover new cards sent out after Apr 07 or whenever it comes out.

 

By the way as it doesn't seem to have been mentione don this thread yet the fact that the debt is unenforceable during a default means they shouldn't have charged interest on it either.

 

However I'm only up to page 12 (it's heavy going!) of the main thread about this so I could be wrong.

[ladybird17]

Hi Cornflake - makes good reading that thread doesn't it?

 

This thread is pretty much about what you have said - because they are apparently in breach of S85, they are in default & debt unenforceable. A number of us have started down this route, and iwannabedebtfree started this thread to separate this issue from the Credit Agreement thread.

[mbnachickens]

Hi,sorry for jumping in here but I have been browsing on this site and I see section 85 cca to do with credit cards. I have gone on this site as mbnachickens as I think of the advert on the telly when I speak to them.

They took over a loan I had with bank of scotland so does that mean I should have had a copy of the original agreement when they took over.

[ladybird17]

I'm not sure how/if S85 relates to a loan as we have been looking at this from the credit card angle. I'll have a look at the act & see what I can find out - of course one of my learned colleagues may be able to step in and be able to answer you. Get back to you on it. You may want to look at the thread Consumer Credit Agreements - very long and a bit complicated, but if you have the time to read through it, it may clarify some thngs for you.

[m55dlc]

S85 doesn't apply to loans as there is no credit token issued that can be used to purchase goods (i.e. credit card).

 

To put you in the right direction, you need to send a section 77 request under the Consumer Credit Act 1974. Do as Ladybird suggests and look through 'Consumer Credit Agreements' thread. There are a number of template letters you can use to send to MBNA for a copy of the agreement. You will need to send a cheque / postal order for £1 along with your letter.

 

Anybody who wants to take the fight to MBNA will get all of the help I can give!

[Stornoway]

No probs. Are you going to follow suit?! I have mentioned it in my complaint to Bill/Will but will not do it til I get a response (see my thread MBNA Nightmare!).

 

I personally think that everybody should hit them with it and it will have a huge impact.

 

Go on Stornoway, I dare ya!!!!

 

Long story .....I have a s78 in course but only sent it last week. My card is about 15 years old was originally with "Robert Fleming" then they were taken over by "Save and Prosper" (they were a friendly society / building society from memory) then they sold their card business to MBNA. I'll be absolutely amazed if they can find the agreement. I've successfully claimed £3500 in charges and interest from MBNA but this was applied to the account which is now with a DCA (has been sold / assigned). What I ultimately want is default removal and presumably if they cant find the agreement then they cant report the default to CRAs ?

[ladybird17]

Re: PHIL and ALISON V MBNA

 

See post #65

 

........any comments gang?