s.85 gang vMBNA

[The Phantom]

Excellent news !

I have posted your template off to MBNA yesterday recorded delivery

They should have had it today !

[iwannabedebtfree]

got a letter from some woman saying she was head of customer assistance, advising that the business section will reply to me within 5 business days in respect of my s85 default. i may be small, individualistic, but at times act like im more than just me, but im definately not a business! they do have until 5th March i do believe to comply, but maybe they are busy at the moment with all the s85 defaults that have been sent to them!

[The Phantom]

It would be interesting to see their reply to it

Keep us posted

I sent them the template as well, but they could have only got it yesterday

[ladybird17]

Hi Nicole - the S85 is quite a new route on here - what is the template S85 you are referring to?

[The Phantom]

Sorry, not a real template from the template section

I meant the one from the Terminator (to be found in Battleaxe's thread)

I just called it a template...

[ladybird17]

there is still a lot of questions & issues around the validity of some our interpretations re. S85 -have you read the CCA Agrements thread?

[The Phantom]

Not all of it , it would take a while to chew through it.

I can't see it hurting though to send off. I have also send them a CCA at the same time as they are intending to sell the debt, so wanted to throw this at them before they do

They have also had a SAR which they ignored , so they had the Full Monty

[Perseus]

Ok - just so that I don't put my foot in it, throw a spanner in the works and mess up.

 

Would someone please explain something for me;

 

Under what circumstances can I send this s85 letter off

 

What will I potentially achieve by serving this notice

 

Can it be challenged/defended, is there any evidence etc to be supplied from me?

 

The term 'concolidated' - does that return the interest to me?

 

If an account is in arrears and I send this off - what can they do to the account?

 

If there is charges and a potential mis-sold ppi (self employed) to be reclaimed on the account, is it best to do it all at once, or bit by bit?

 

Sorry for the questions,

[m55dlc]

MBNA are beginning to get my goat. I receive a s87 DPA1998 default notice (incorrect & illegal) which prompts me to read the CCA thread on the 27th January. I fire off SAR & s78 requests and a s85 default on the 29th January, all stating no contact by phone. I receive a copy of the application form I signed, not executed and not with all the prescribed terms - so I send it back saying 'wrong!'. I have two messages on my answerphone stating 'I know you don't want to be contacted by phone, but call me now on ###' (which beggars belief). They don't send me my s10.2 (I think it's 2 - the bit about sending notice within 21 days of a SAR) but I do get a letter stating my account will be defaulted and will be sold, and a statement asking for money, also saying my account will be defaulted and later sold (showing a credit of £1, which was my s78 fee!). I send them a letter stating their 12 working days are up and are therefore in default of my s78 request and then I receive a text message, and I quote 'Hi, it's Alex, give me a call on 01244672124, it is important I speak to you today'. OK, so I give them a call, and the standard operator with an Irish accent starts into the standard MBNA blurb, which I stop and in no uncertain terms tell her that she'd better read the screen notes, especially regarding recent correspondence from me before she later says something which could land her with a £2.5k fine and / or 3 months in prison. Understandably she passed me to a manager, who I berate for 20 minutes quoting most (but not all) of their legal shortcomings. Anyway, he offers a settlement where I pay 40% of the outstanding balance and they wipe the slate clean - attempts a little bit of pressure and mentions an I & E, at which point I state they don't have an executed agreement so the agreement is unenforceable anyway, and if they argue that the agreement is valid, it falls foul of the DPA (and wouldn't stand anyway) so tough..........

 

I'm off to think about a measured response, they can sweat, but this would mean (through the charges refunded already and current charges and compound interest on charges etc and s85) my original (wholly artificially inflated by MBNA practices) debt would be changed from circa £6k down to £1525.

 

I'm sensing I like a figure of around about £390 better, and that would be on the proviso that ALL adverse CRA entries are resolved ('cos I could say jump, but then I'd have a CRA fight on my hands to clear my record).

 

What do you all think?

[Jeff2000]

MBNA are beginning to get my goat. I receive a s87 DPA1998 default notice (incorrect & illegal) which prompts me to read the CCA thread on the 27th January. I fire off S.A.R - (Subject Access Request) & s78 requests and a s85 default on the 29th January, all stating no contact by phone. I receive a copy of the application form I signed, not executed and not with all the prescribed terms - so I send it back saying 'wrong!'. I have two messages on my answerphone stating 'I know you don't want to be contacted by phone, but call me now on ###' (which beggars belief). They don't send me my s10.2 (I think it's 2 - the bit about sending notice within 21 days of a SAR) but I do get a letter stating my account will be defaulted and will be sold, and a statement asking for money, also saying my account will be defaulted and later sold (showing a credit of £1, which was my s78 fee!). I send them a letter stating their 12 working days are up and are therefore in default of my s78 request and then I receive a text message, and I quote 'Hi, it's Alex, give me a call on 01244672124, it is important I speak to you today'. OK, so I give them a call, and the standard operator with an Irish accent starts into the standard MBNA blurb, which I stop and in no uncertain terms tell her that she'd better read the screen notes, especially regarding recent correspondence from me before she later says something which could land her with a £2.5k fine and / or 3 months in prison. Understandably she passed me to a manager, who I berate for 20 minutes quoting most (but not all) of their legal shortcomings. Anyway, he offers a settlement where I pay 40% of the outstanding balance and they wipe the slate clean - attempts a little bit of pressure and mentions an I & E, at which point I state they don't have an executed agreement so the agreement is unenforceable anyway, and if they argue that the agreement is valid, it falls foul of the Data Protection Act (and wouldn't stand anyway) so tough..........

 

I'm off to think about a measured response, they can sweat, but this would mean (through the charges refunded already and current charges and compound interest on charges etc and s85) my original (wholly artificially inflated by MBNA practices) debt would be changed from circa £6k down to £1525.

 

I'm sensing I like a figure of around about £390 better, and that would be on the proviso that ALL adverse CRA entries are resolved ('cos I could say jump, but then I'd have a CRA fight on my hands to clear my record).

 

What do you all think?

 

 

 

Hi,

 

 

Excellent, GO FOR IT! Especially get your CRA files sorted out!

 

Jeff.

[ladybird17]

Just posting to re-subscribe - had problems with editing my e-mail options and they had to delete all my subscribed threads to sort it out.

Corn - anything yet on S85? I got the standard letter, supposed to be replying by 27 Feb.

[Cornucopia]

Just posting to re-subscribe - had problems with editing my e-mail options and they had to delete all my subscribed threads to sort it out.

Corn - anything yet on S85? I got the standard letter, supposed to be replying by 27 Feb.

 

Hi Bird, no I haven't issued a Section 85 yet, I have only mentioned it in my letter so they know that I know!

 

Can't wait to see what your response says!

 

x

[iwannabedebtfree]

hello all

 

sorry for the late post, have been way too busy with other stuff not good cant talk anyway no joy wiht MBNA as yet, they seem to pass my s85 from department to department without anyone knowing, we now have a date of march 9th for a reply, its the second date so i doubt it will give me anything new

[ladybird17]

there's a load of debate going on over on the CCA thread about S85, so, alhough I've now written to MBNA for copy of original CCA, I'm not doing anything on the S85 at the moment.

The CC Act and CC regs. are SO confusing, and ambiguous, and we are still pulling them apart

[progenic7]

Hi all,

 

some of you may remember a while ago when i asked what relevance s85 may have on a closed CC account, i have to claims going on at the minute with CC's one with MBNA and one with RBS.

As i gather from this thread (my knowledge lies in other areas) as i havnt researched the relevance of s85 myself im not sure whether or not it could be of assistance to me in my claims.

Like i said i have to CC claims ongoing and i know for a fact that on both cards wheni received a new card i did not receive a copy of the CCA.

 

So where does that leave me, does it make a difference to my claim ?

is it worth pursuing the matter bearing in mind both accounts are now paid off and closed ?

 

any thoughts anyone ?

[ladybird17]

progenic, IF the S85 argument stands up - and there are a few differing trains of thought on this at the moment, I don't see any reason why you can't pursue even thought it's paid off. I would watch this space - there's quite a few of us on this thread who are well into the CCA thread, so we will keep you posted.

[progenic7]

ok thanks hun, im suscribed to this so i'll keep watching

[iwannabedebtfree]

sorry for late reply have major personal issues at the moment. got a letter from gavin, was soo nice, i went from customer assistance, to business department to the advocate dept, only they are now calling themselves assistance department. i thought id let them stew so rather than chasing it up i ran with their timeframe.

 

gavin's reply in essence was - "the copy of the credit agreement which you receive with your credit card actually serves as your copy of that credit agreement for the purposes of section 85. this is sent to you in the form of a "Credit card mailer" and comprises a credit card which is physically attached to the copy of your agreement.

 

you may note that this copy of your credit agreement does not include a signature by or on behlaf of MBNA. the signature has been deliberately omitted, as MBNA is permitted by law to serve you a copy of the credit agreement without including the signatures and certain other specified information. this does not affect the validity of the credit agreement of the copy we have served on you. "

 

 

my reply

 

MBNA Europe Bank

Customer Assistance Department

PO Box 30

Chester

CH4 9FD

 

Dear Mr Theobald,

 

Account: xxxxxxxxxxxxxxxx – Letter Before Action

 

Thank you for your letter dated 7 March 2007. I have noted the content of the letter, and unfortunately the content has not met my expectations. As you will note as part of my letter I sent you a default notice, advising of the breach and request for consolidation of all interest since June 2004, totalling £550.19.

 

In my previous letter dated 5 February 2007, I advised of the relevant section of the Consumer Credit Act 1974, section 85 advises:

 

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.

 

You seem to be of the opinion that the “credit card mailer” as you word it meets the set criteria of section 85 of the above act. However, you need to note that section 85 advises that an “executed agreement” is required. If you review section 61 of the above act it will advise of what is an executed agreement, namely an agreement that is in a prescribed form, is signed by both myself and MBNA, and contains the terms of the agreement.

 

Your “credit card mailer” as you describe, does not conform to the executed agreement under section 61, ergo, you are in breach of section 85 of the Consumer Credit Act 1974 as previously explained in my letter dated 5 February 2007. Furthermore the default notice that was submitted with the letter has not been complied with, therefore I give 14 days notice of my intention to commence court proceedings against MBNA at the earliest possible time upon expiration of the 14 day notice period.

 

Yours sincerely

 

 

 

 

so lets see where it all goes.....ha ha off to court i guess at the end of the month!

[ladybird17]

Iwannabe... I would edit your post with MBNA letter in it - it has your name on it.

[iwannabedebtfree]

apologies for not updating but MBNA have replied to me stating that their stance on s.85 is correct, however, they have offered me a further goodwill payment as they realised when they worked out my charges refund they only included fees and contractual interest, and not fees, contractual interest and the 8% they say i would receive from court had i taken them to court!

 

anyway as far as im now concerned the fight with MBNA is now all over! im back within my T&C's, i've even paid the contractual payments on time and i get spoken to on the telephone like im a valued customer!!! ha ha check that out, i have gone from being nasty slug on the floor in debt that can be trodden on from corporate MBNA to yes sir no sir have some credit sir...ha ha so they can charge me more in interest (yes sadly the downside is that i got a letter saying that their interest rate is going up!)

 

toodles