Standingupformyself V MBNA/Abbey CC **WON**

[standingupformyself]

Thank you..... I await further comments !!! please... !!

[joneshousehold]

Standing, what Corn says is quite right. I had one who told me they could not find my agreement so they sent me a blank form. I wrote and told them the following

 

1. As they do not have the original agreement, I do not know if the blank they have sent to me is genuinely a copy of the alleged agreement. They are required to sent a true copy not something that is reconstructive conjecture. Until they can prove it is the same as the original they remain in default

 

2. I cannot be required to act within any alleged agreement as they cannot show what the alleged agreement requires me to do

 

3. There is a strong argument for saying the agreement never existed and they they have erroneously collected money from me that I would like returned (this is a bit up in the air as there is mixed fortunes on recovering past payments)

 

4. Without any agreement they cannot demonstrate that I have given the right to process my data so they must stop immediately and remove all past data.

 

There are some interesting quotes from OFT that you can give if you want. These are in a letter I have had from OFT but in fact I have seen the same wording several times on the site and it seems to be a standard letter.

 

…the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

&

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed

 

Make sure you tell them you do not acknowledge any debt and always refer to the agreement as an ALLEGED AGREEMENT. You do not have to make any payments and whether you do so is entirely up to you.

 

Some people have found that this situation is the end of the story with the creditor writing off the debt but many creditors will try to intimidate you to pay up. I believe MBNA fall into the latter category so prepare yourself for a bumpy ride. Ultimately they may try to enforce the debt in court and you will have to be prepared to defend the claim on the grounds that you do not acknowledge the debt. This will force the creditor to prove the existence of the debt which the OFT points out is impossible without the original agreement.

 

You need to write to MBNA to set out your position and just wait and see what they do next.

 

What a little while though and see if anyone else can add to the thread to give you some other ideas.

 

Good luck

[standingupformyself]

Thanks Corn and Joneshousehold. I am hoping for input from many people, hopefully some that have trodden this path before me.

I am on a payment plan with MBNA, and have been since last September, they finally froze interest and stopped charges and I am paying £10 each week. I phone them up every 3 months and give them my debit card details and they then take a weekly payment each week for 12 weeks. The next time I am due to phone them is the end of June.

 

I intend, for the meanwhile to continue paying the £10 per week, I was never going to try to stop paying this bill, I want it to go away by claiming back the charges, which will wipe the bill and leave a couple hundred spare.

 

I am hoping that I can find the right words (with the help of everyone here) to send them a letter, informing them of the situation I know we are in at the moment, and try to push them to settle my claim sooner rather than later.

 

I am also hoping to clear the defaults on my credit file.

 

I am hoping too much?

[joneshousehold]

Definately not. You have a situation where the creditor would be very unlikely to be able to enforce the debt and yet you are still willing to pay up albeit only the balance after the charges are refunded. You can retain the moral high ground whilst always threatening the creditor with their default position.

 

Sounds like a good position to be in to me.

[standingupformyself]

The moral high ground? I do like the sound of that. the banks etc have always made me feel so small.........

I am looking forward to drafting a letter out to them over this weekend. I will not rush into it though, gain more information from this site.

As a matter of interest, has anyone else out on this site had similar experiences?

[joneshousehold]

Look at this thread

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply.html

bit of a biggie but worth the read

[humbleman]

standing

 

The letter you received is a standard letter...fulfilling their duties section 78 blah blah.... but surely you made a request under section 77-79, which they totally ignore.

[davey77]

Hi there 'standingupformyself'. Very interesting reading your thread. I have nothing very new to help you with but can say that MBNA are pigs to deal with and will try to wriggle out of their obligations at every turn, bluff you with false legalitites or simply ignore you completely. Of which the later is mostly the response i have had. Anyway, going to subscribe to your thread and wish you the best with it all. Sounds like you are on the winning side to me.

MBNA have ignored my CCA's although awaiting a response (due by the 12th June!) about my compliant in that regard before i report then to TS.

Keep up the good fight!

http://www.consumeractiongroup.co.uk/forum/mbna/57846-debt-written-off-due-6.html

[standingupformyself]

I have drafted a letter.... If anyone has any input I would be grateful to see it..... I think I am missing some legal jargon !!!!

Thanks xxxx

 

 

Dear

I refer to your letter, dated 22.5.07 where you informed me that you were unable to provide me with a copy of my Consumer Credit Agreement, which I requested under section 78 of the consumer credit act. I acknowledge that you have sent to me a copy of the terms and conditions of your credit card. This however does not fulfil your obligations as a lender. You point out in your letter that MBNA has responded in full to the request I made under section 78. I totally and utterly dispute that fact, you have not provided me with a copy of my CCA, and until you do the status of my account with you remains in dispute.

I would like to point out to you that I am in the process of reclaiming unfair charges from MBNA, to date the amount I am pursuing is £xxxxxx, which is made up of £xxxxx in charges and £xxxxxx in interest, charged at the rate that you are charging me. I also require defaults listed against me to be removed.

I am totally aware that MBNA not being able to provide me with a copy of my requested CCA is an offence in the eyes of the law, making the debt unenforceable. I am also aware of the steps I can now take in reporting this non compliance.

I ask that you now settle my claim, without further delay to prevent this situation being taken any further. I look forward to hearing from you within 14 days of the above,

Regards,

[wednesday1867]

Dont know know if im right or wrong, but if they cant provide the agreement, you then cant reclaim the charges, you just stop paying, so instead of reclaiming say half of the debt, the full debt is written off.

 

Post number 9 on my thread http://www.consumeractiongroup.co.uk/forum/mbna/84974-wednesday1867-mbna.html

 

Hope you can, because i want to take MBNA for as much as i can and i still dont know, what if anything you can claim for, if they cant produce your agreement. Obviously id be happy with them writing the debt off, but kinda looked forward to receiving a hefty cheque,lol

 

All the best with it Standing

[standingupformyself]

Hi there Wednesday, I have had a read of your thread, and have subscribed to it.... Keep in touch.

Joneshousehold had a point on there that concerned me a little though, stating that we could not claim back unlawful charges, as there was no agreement... hmmm not sure what to think about that one.....

[jackster77]

Hi standing

 

I had a similar thought re charges and unenforcable debt and I

wasn't going to go down the road of getting a copy of my cca because the charges alone would of wiped out the debt and gave me some cash back

eg I owe them £700 charges are £1300 so down the unfair penalty route I would get £600 and info removed from credit file

 

however someone posted on my thread and seems to think that if MBNA could not provide me with a CCA then the debt would be written of and I would get all of the charges back

eg removal from credit file and whole £1300 back - a much more attractive proposition

[standingupformyself]

certainly is more attractive ! I will re read your thread Jackster.....

[standingupformyself]

Jackster?? I do wonder though, how is it possible to reclaim charges back, if the debt has been written off? Surely it is not possible to reclaim something back that you did not actually have to pay in the end?? I would be interested to hear anyone elses thoughts on that matter.

[standingupformyself]

I have re-tweaked my letter, with the help of some other letters posted onto our furums.... I am hoping to get this letter posted off tomorrow. All input gratefully received...... And should I put a time scale for their reply onto this letter?

Dear Mr. Cross,

 

In reference to my request (dated 11th April, 2007) for a true executed agreement, under the Consumer Credit Act 1974 (Sections 77-79).

 

I thank you for your letter in response dated 22nd May 2007, but I feel I have to draw your attention to the points you made and now, how I view the situation.

 

Firstly, I quote “ We are unable to retrieve any copy applications made with Abbey prior to the conversion to MBNA that happened during 2001” my original request was for an agreement not an application form, the agreement I am to be supplied with, must be signed by myself and contain all the legal requirements for it to be executed correctly in accordance with the Consumer Credit Act 1974.The copy agreement I am to be supplied with, must be a true copy of the one signed by myself and Abbey National.

 

Secondly, and again I quote “For the avoidance of any doubt, we would like to confirm that MBNA has responded in full to the request you made under Section 78; and in any event, your credit agreement remains valid and your obligation to repay remains intact”. I totally and utterly dispute that fact, you have not provided me with a true copy of my CCA, and until you do the status of my account with you remains in dispute.

 

I am totally aware that MBNA not being able to provide me with a copy of my requested CCA is an offence in the eyes of the law, making the debt unenforceable. I am aware that not supplying me with a true copy of my CCA is a criminal offence; I initially sent to you a full request on the 11th April, 2007. I am also aware of the steps I can now take in reporting this non compliance.

 

I would like to point out to you that I am in the process of reclaiming unlawful charges from MBNA, to date the amount I am pursuing is £3504.02 which is made up of £2017.00 in charges and £1487.02 in interest, charged at the rate that you are charging me. I also require all defaults listed against me to be removed.

 

I look forward to be receiving your response.

 

 

 

 

Yours sincerely,

[Cornucopia]

I have re-tweaked my letter, with the help of some other letters posted onto our furums.... I am hoping to get this letter posted off tomorrow. All input gratefully received...... And should I put a time scale for their reply onto this letter?

Dear Mr. Cross,

 

In reference to my request (dated 11th April, 2007) for a true executed agreement, under the Consumer Credit Act 1974 (Sections 77-79).

 

I thank you for your letter in response dated 22nd May 2007, but I feel I have to draw your attention to the points you made and now, how I view the situation.

 

Firstly, I quote “ We are unable to retrieve any copy applications made with Abbey prior to the conversion to MBNA that happened during 2001” my original request was for an agreement not an application form, the agreement I am to be supplied with, must be signed by myself and contain all the legal requirements for it to be executed correctly in accordance with the Consumer Credit Act 1974.The copy agreement I am to be supplied with, must be a true copy of the one signed by myself and Abbey National.

 

Secondly, and again I quote “For the avoidance of any doubt, we would like to confirm that MBNA has responded in full to the request you made under Section 78; and in any event, your credit agreement remains valid and your obligation to repay remains intact”. I totally and utterly dispute that fact, you have not provided me with a true copy of my CCA, and until you do the status of my account with you remains in dispute.

 

I am totally aware that MBNA not being able to provide me with a copy of my requested CCA is an offence in the eyes of the law, making the debt unenforceable. I am aware that not supplying me with a true copy of my CCA is a criminal offence; I initially sent to you a full request on the 11th April, 2007. I am also aware of the steps I can now take in reporting this non compliance.

 

I would like to point out to you that I am in the process of reclaiming unlawful charges from MBNA, to date the amount I am pursuing is £3504.02 which is made up of £2017.00 in charges and £1487.02 in interest, charged at the rate that you are charging me. I also require all defaults listed against me to be removed.

 

I look forward to be receiving your response.

 

 

 

 

Yours sincerely,

 

Standing, I would suggest that it is a risky move to reclaim charges once they have admitted that they do not have a true copy of your executed agreement. If they were to take you to Court, it would be a complete defence. My own view is that to reclaim charges could be seen as an admission of debt. I would be more inclined to put in there "for the avoidance of doubt, I do not acknowledge any debt to your company".

 

Also, it is incorrect to put " a copy of my CCA", you should replace this with a "true copy of my executed agreement" only because it doesn't make sense to ask for a "copy of your Consumer Credit Act" if you see what I mean!

 

I am sorry if I am repeating myself, but would reclaiming the charges wipe the debt? If so, you may feel more comfortable with seeing through the charges claim and then later on using the lack of agreement as a reason to remove any defaults or credit markers - on the basis that they do not have permission to process your personal data without said agreement.

 

Regards,

 

Corn x:)

[standingupformyself]

Hi Corn.

I owe them £3722, they owe me £3504, rising at £2.15 per day. You suggest that I continue my claim with them? Then afterwards use their lack of compliance to remove the defaults.......?

 

That does make sense.... in the meantime keeping quiet about the lack of CCA?

I am due to send my LBA to MBNA this week... This I can do at the same time as rejecting their offer for £820

I am also due to phone up MBNA and give them my card details, as they take £10 payments out of my account, weekly, for 3 months, I then phone them up and re-arrange this agreement.

I should continue paying them the £10 per week and continue the claim in the standard way.... It sounds like the way ahead

[Cornucopia]

Hi Corn.

I owe them £3722, they owe me £3504, rising at £2.15 per day. You suggest that I continue my claim with them? Then afterwards use their lack of compliance to remove the defaults.......?

 

That does make sense.... in the meantime keeping quiet about the lack of CCA?

I am due to send my LBA to MBNA this week... This I can do at the same time as rejecting their offer for £820

I am also due to phone up MBNA and give them my card details, as they take £10 payments out of my account, weekly, for 3 months, I then phone them up and re-arrange this agreement.

I should continue paying them the £10 per week and continue the claim in the standard way.... It sounds like the way ahead

 

I personally think you are in rather a strong position with this. If your charges were nowhere near going to cover the debt, I would suggest seeing through the CCA route, but as you could reclaim the charges and virtually clear the balance, you may as well do this and not have all the additional hassle with repairing your credit file whilst you have a row with them over the lack of agreement!

 

However, once the charges have been repaid and you have a tiny balance, you can then go down the route of using the lack of agreement as a tool for default removal, whilst this may be rather more drawn out, this seems to me to be the common sense approach given the size of your claim. I am doing this with another CC provider who shall remain nameless!

 

On this basis, if you are going to keep the CCA issue to yourself for now, then I would continue your payment arrangement in the meantime - play nice for now and then hit them where it hurts later!

 

Remember, you could then consider going for consolidation - after all they have admitted they can't provide the agreement, despite all the bluster they have tried to use to put you off! Without the debt hanging over your head, I think it would be worth a go, don't you?!

[standingupformyself]

Remember, you could then consider going for consolidation - after all they have admitted they can't provide the agreement, despite all the bluster they have tried to use to put you off! Without the debt hanging over your head, I think it would be worth a go, don't you?!

 

Not sure what you mean by going for consolidation Corn?

I am going to take the route you suggested though. keeping quiet about cca, paying the arranged weekly amount and keep the claim going. defaults to be dealth with later

Thanks for your help xx

[Cornucopia]

Remember, you could then consider going for consolidation - after all they have admitted they can't provide the agreement, despite all the bluster they have tried to use to put you off! Without the debt hanging over your head, I think it would be worth a go, don't you?!

 

Not sure what you mean by going for consolidation Corn?

I am going to take the route you suggested though. keeping quiet about cca, paying the arranged weekly amount and keep the claim going. defaults to be dealth with later

Thanks for your help xx

 

Consolidation (or restitution) is as yet untested territory (as far as I am aware, although I think there are a couple of cases in the pipeline), but it means reclaiming all interest you have paid whilst the account was running, the reasoning behind this is they had no right to profit from your payments whilst operating the account unlawfully (ie : without a true copy of the executed agreement).

 

One step at a time, I think and you are doing this the right way round if you ask me..........pick away at it and you will get there...........! xxxxx

[standingupformyself]

I need to make sure that I do things right though..... I am going for my charges now, and CI at 8%.... but the consolidation route? I understand what you mean now, but could I claim the interest back that I had paid, if I was sucesfull in claiming back the interest already? would it be possible to work out the interest that was left? I don't think I am wording this too well, I know what I mean.. .. .. but do you know what I mean?

 

xx

[Cornucopia]

I need to make sure that I do things right though..... I am going for my charges now, and CI at 8%.... but the consolidation route? I understand what you mean now, but could I claim the interest back that I had paid, if I was sucesfull in claiming back the interest already? would it be possible to work out the interest that was left? I don't think I am wording this too well, I know what I mean.. .. .. but do you know what I mean?

 

xx

 

No, you are confusing the two. Firstly, why are you only doing CI at 8%? If it were me, I would be claiming what they are charging you, for example, check your statements, say they are charging you 1.7% per month, multiply this by 12 and you have an annual percentage rate of 20.4%, this will seriously bump up your claim! Just to experiment, put that increased interest rate into your spreadsheet and see the difference! This claim for contractual interest is for your charges ONLY. What I would say is that should this come to Court, the Judge is only obliged to award you 8%, however, MBNA have long been settling on contractual and you and I both know that it is unlikely to reach the Courtroom.

 

Consolidation is a separate issue, this is where you ask them to repay all the interest that has ever been applied to the account from the word go, as you can imagine, this is likely to be a very sizeable sum. Again, refer to statements, preferably before you got into difficulty, see what your minimum payment was and how much of that payment was made up of interest. If you were able to add up the interest costs over the term of the account, you can see that this could possibly be worth pursuing. I think we need to cross that bridge when we come to it. Let's do one thing at a time............

 

I hope this helps!

 

Regards,

 

Corn x:)

[standingupformyself]

sorry Corn,,, I am charging 24.9% CI.........

 

You really are a mine of information... I am sending off LBA today. and also rejecting their offer of £820

 

Will keep you posted, and thank you for your help

[wednesday1867]

Consolidation (or restitution) is as yet untested territory (as far as I am aware, although I think there are a couple of cases in the pipeline), but it means reclaiming all interest you have paid whilst the account was running, the reasoning behind this is they had no right to profit from your payments whilst operating the account unlawfully (ie : without a true copy of the executed agreement).

 

This is what id be hoping to do, if and when MBNA dont provide my agreement. :smile:

[Cornucopia]

sorry Corn,,, I am charging 24.9% CI.........

 

You really are a mine of information... I am sending off LBA today. and also rejecting their offer of £820

 

Will keep you posted, and thank you for your help

 

OK Standing, that's more like it!!

 

I personally wouldn't reject their offer, I would accept it as "partial settlement", this will show you are being reasonable. I hope you get this in time!

 

Thank you for your compliment! Much appreciated!

 

Look forward to hearing about "Round 2"!!!

 

Regards,

 

Corn x:)