A+L Card Debt sold to LINK

[The Phantom]

I have still heard nothing more from LINK with regards to this matter

Should I write to them and ask them to confirm the matter is closed as they obviously have no agreement for this

I have found a good template from Yaffsimone1 which would need modest alteration but would in effect be usable

 

I wrote to you on the XXXXX requesting a true, signed copy of any credit agreement that exists in relation to the above account (see enclosed).This is my right under Sections 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and I have received nothing in relation to my request apart from being pursued by your dormant debt collection agencies GCC and Nationwide Debt Recovery. This can lead me to only one conclusion, that being that no signed credit agreement exists in relation to this account.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking.

 

On the advice of the Financial Ombudsman, I am now requesting a final decision in this matter from you. Should this decision not meet with my satisfaction, then I will pursue the matter through the Ombudsman. The maximum timescale for you to give a final response to any complaint is 8 weeks. This time runs from the date of my original complaint, in this case that is the request for a true copy of the credit agreement. Therefore, you must provide me with a final response in this matter, including your proposed actions for this account, by XXXX

 

Please note, you may also consider this letter 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 the 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.

 

Under the Data Protection Act I have principled rights in that

 

 

(Schedule I)

 

1. Personal data shall be processed fairly and lawfully

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes

 

(Schedule II)

 

1. The subject has given his consent.

2. The processing is necessary

a. For the performance of a contract to which the data subject is a party.

 

The fact that you cannot provide me with a copy of the agreement negates any Notice of Default being served on me, as required by the conditions of the Consumer Credit Act 1974. Incidentally, I cannot recollect receipt of the said documentation. If the documentation were to be produced as you are aware the default notice cancels any original terms and conditions and as such cancels any right to share my information without my consent.There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

 

Furthermore, you should remember 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 therefore the following applies:

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this account to any third party.
  
• You may not register any further information in respect of this account with any of the credit reference agencies.
  
• You must remove the default notice you have placed on my credit file.

I look forward to your final decision on this complaint by XXXX This should include your proposed actions in relation to the lack of a credit agreement

 

Not sure whether to do this or just leave it ?

[M.Willows]

I would be tempted , especially if they had not responded at all with my CCA.

[The Phantom]

No, they have been in criminal default since 25.06 (MBNA also never replied to my CCA and sold the debt whilst in criminal default)

It would appear the agreement is not available anymore

[Josie8]

If you want closure on this debt I think the letter above is the way to go

[M.Willows]

Hi Phantom

I would re check that NDR are a dormant company as they are due to send in their accounts this month I believe.Have some dealings with NDR myself and will have to re check this myself if one of my Littlewoods accounts is still active and being pursued by them as Littlewoods have said they do not hold the agreement for this account and NDR are trying to enforce , but I haven't had time to take things further as yet.

[M.Willows]

I know this is a template letter but I would just like to point this matter out to others before they jump the gun , and then of course be ignored by the DCAs.

[The Phantom]

Yes, I know

The letter would need adapting for individual's circumstances, ie. make sure you leave out everything that does not apply

[The Phantom]

Hi all

 

got a letter from MBNA today (not LINK !!) sending me a one sheet copy of something they think is the original agreement. I will try and post it once I figured out how to do it.

It is dated 1998 and signed by me, it is not signed by them, just stamped as received July.1998. It is not headed , there is just a blank black space along the top which probably covers the original header "Application for a Credit Card "or something like this. 95% is illegible, I can read just about what I filled in, but not the actual writing of the document itself.

They enclosed copies of current statements and new terms of conditions which are from when MBNA took the card over from A&L and already show the new revised penalty charges of £12.-, not the ones from 1998.

Could someone look at it a bit later, I will advise when it is up and running

 

Cheers

[The Phantom]

OK - here it is

Please note I blanked out everything I filled in (personal data)

The copy is as poor as it appears by the way

The interesting thing is, all my personal data is hand filled by myself when I filled out the application, but the field with my surname is TYPED by ..er whom ? It looks so odd, all fields are hand filled apart from my surname which is typed in as MRS PHANTOM

This one sheet as seen in the scan is accompanied by current T&Cs from MBNA (already showing the recent new penalty charges of £12.-) and a few copy statements of the account

Any ideas ?

http://img.photobucket.com/albums/v456/Nicole99/MBNA-2.jpg

[MoonHawk]

Hi Phantom

 

If you could scan it (at at least 100 dpi resolution) and let us have a look and we can advise The once you have posted is not hight enough resolution to make out what is originally illegible and what is made illegible through scanning/saving as jpg.

 

If it is an application form and contains all the prescribed items on it and is signed by you then the court can enforce it UNLESS they did not send you a cancellation notice (this can be seen in the information sent via an S.A.R - (Subject Access Request)).

 

However, if it not legible, then the prescribed terms can not be read and therefore it is not, in my view, acceptable.

 

If it is truly illegible and the prescribed terms can not be read, then what you could write back is:

 

Thank you for your letter {insert date}, in response to my letter on the {insert date}.

 

In my letter, using my right under the legislation contained within section 78 (1) of the Consumer Credit Act 1974 (CCA 1974), I had requested:

 

1. True copies of the signed alleged agreement you refer to, including the related Terms & Conditions.

 

2. A statement of account.

 

In your reply you have not provided the statement of account, as requested, although you have provided copies of recent statements. You have also provided a copy of my original Application and an unrelated Terms and Conditions.

 

Neither the application form nor the Terms and Conditions, comply with my request under section 78(1) of the CCA 1974. The Application form, although does contain my details and signature, is only an application form and further more is totally illegible and the required prescribed terms can not be read.

 

As such you have not yet fulfilled your obligation under the CCA 1974, and are still required to supply me with a signed copy of the executed agreement and ‘related’ Terms & Conditions.

 

You received the original request on {insert date}. To date you have failed to comply with my statutory request and, as of {insert original date +12}, you will have defaulted in respect to the above account. Under the same act, after {insert original date +12 +1 month}, failure to provide the requested agreement will mean that you will have committed an offence punishable upon conviction, by a fine of £2,500 or 3 months imprisonment.

 

It is also an offence to attempt to enforce the alleged agreement until such time as the default is removed. So unless the documentation is forthcoming within the prescribed timescale, any communication requesting further payment, by MBNA or their representatives, will be reported to the OFT and FSA.

 

I will once again remind you that a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA 1974and therefore is a complete defence to any court claim that is issued.

 

I would also like to point out that any attempt to pass this account to any other compnay or organisation, for example through selling of the alleged debt/account, is an offence under the Data Protection Act, until such a time as you comply with my original request. For clarification of this I refer you Schedule 1 of the "Data Protection Act 1998" and section 3.1.4 of the "Data Protection Act 1998 Legal Guidance" as published by the Information Commissioner's Office, which outlines the definition of Lawfulness in relation to the processing of data.

 

Please note that any legal action you may contemplate will be both vigorously defended and contested and I also will be seeking costs against Barclays Bank plc.

 

I added the paragraph about the Data Protection Act because it is likely that they will try to now sell the debt, once they see they can not go far with you, and that will mean you have to go through all this again with someone else.

 

Best Wishes

MoonHawk

[The Phantom]

Hi

 

the resolution is the best that can be, the supplied copy is actually that bad when it came through the post

Nothing on the form is legible apart from what I hand filled in (and have now blanked out as it is personal information)

To give you a quick briefing: MBNA has already sold the debt on, it is with LINK Financial who have not responded as yet to my CCA. Both companies are in default of the CCA. MBNA went into default on 05.04.07 (12+ 30) and sold the debt to LINK instead. LINK went into default (12+30) on 25.06.07. I think MBNAs Trading Standards in Chester got in touch with MBNA , because I complained to them back in April. Now I got this poor copy through the post from MBNA with current T&Cs and a few copy statements from April.

So both companies are already long in criminal default. So although MBNA sent me the copy of the agreement, they have sold the debt and are not actively chasing it anymore

Link hasn't sent me anything so far, but may send me the same shortly when they get their copy of this from MBNA

[MoonHawk]

Sorry to be picky, but 72dpi is only the highest resolution for the screen. But you can scan at a higher resolution (say 150 or 300) which would allow zooming.

 

Having said that, it was only so that we can take a close look for you. No reason to question your eyes (as far as I know ), in which case you can also inform both parties to the Information Commissioners Office as they are in breach of the Data Protection Act.

 

For clarification read Schedule 1 - The data protection principles of the Data Protection Act

1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

 

...and ICO's Data Protection Act 1998 Legal Guidance:

3.1.4 Lawfulness

The Act does not provide any guidance on the meaning of “lawful”. The natural meaning of unlawful has been broadly described by the Courts as “something which is contrary to some law or enactment or is done without lawful justification or excuse”. (R v R [1991] 4All ER 481). The term applies equally to the public and private sector and to breaches of both statute and common law, whether criminal or civil. An example of information unlawfully obtained might be information, which is obtained as a result of a breach of confidence or in breach of an enforceable contractual agreement. Since 2 October 2000 it applies to a breach of the Human Rights Act 1998 by a data controller bound by that Act.

 

So you can amend the letter if you want to tell them they are in breach of the DPA and you are going to report them, or take out the paragraph and leave it as a surprise for when the ICO get in touch

 

Best Wishes

MoonHawk

[The Phantom]

I apologize, I see what you mean now. My OH scanned and prepared the doc for me

But all that is legible on the document is the header

The Money back Credit Card

and then the sub headers: Choice of Card, About You, Your Alliance & Leicester Banking Details, Your other Banking Details, Your other account details, Your employment details, About your finances, Additional Card Holder Information, Payment Protection Plan, Additional Requirements, Data Protection Act 1984, Customer Declaration, Customer Signature, Additional Card Holders Signature, Important - You should read this carefully - Your rights

Nothing else is legible apart from the handwritten bits I blanked out.

I am pretty sure the big black area on the top is blanking out the original header"Application for a Credit Card"

[The Phantom]

OK - my OH has changed the resolution and I have uploaded new copy of what they have sent me

http://img.photobucket.com/albums/v456/Nicole99/MBNA-2.jpg

[dpick]

OK - my OH has changed the resolution and I have uploaded new copy of what they have sent me

http://img.photobucket.com/albums/v456/Nicole99/MBNA-2.jpg

 

Hi just my opinion this is an application and if was classed as agreement by a court would be unenforceable by the court as no apr or payment options see CCA 1974 s127(3)

 

all the best dpick:)

[The Phantom]

Thanks for that - that emphasizes the general opinion and basically what I thought when I looked at it this morning.

No prescribed terms, incorrect T&Cs and illegible

I will fire off the above letter

 

I have been following so many other members' threads over time and learnt so much, this site is truly amazing.

[dpick]

Thanks for that - that emphasizes the general opinion and basically what I thought when I looked at it this morning.

No prescribed terms, incorrect T&Cs and illegible

I will fire off the above letter

 

I have been following so many other members' threads over time and learnt so much, this site is truly amazing.

 

You will know you are hooked when you realise that you are starting to enjoy writing to these twits.

 

all the best dpick:)

[The Phantom]

Err...yes guilty as charged

[hellhasnofury]

Err...yes guilty as charged

 

 

MMMmmmmmm and me, me Lord:eek:

[The Phantom]

There is no shame in that !!

[The Phantom]

OK - will tell them this:

 

Account XXXXXXXXXXXXXXX

Trading Standards Complaint & Investigation

Your breach of the Consumer Credit Act

Your letter dated 17.08.07

 

 

Dear Mr Dick Head

 

with regards to the documents that you sent me in relation to my request for information under the Consumer Credit Act 1974, you seem to have sent me an application form and a somewhat recent copy of your terms and conditions and a very recent copy of a generic agreement form unsigned by anyone plus some photocopied statements.

You have therefore not yet provided a true copy of the signed executed agreement.

 

I draw your attention to section 61 of the consumer credit act 1974 (an excerpt enclosed for your perusal) in that

 

“(1) A regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.”

Furthermore Section 127(3) of the Act precludes a court from making an enforcement order if section 61(1)(a) (signing of agreements) was not complied with, unless a document containing all the prescribed terms was signed by the debtor or hirer.

 

I will once again remind you that a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA 1974 and therefore is a complete defence to any court claim that is issued.

 

Be also advised that your statutory time period has long since elapsed, you have been in criminal default since 5th of April 2007.

During the default period, as you are fully aware, NO further action can be taken on an account until such a time as the original SIGNED EXECUTED documents are made available.

 

This account is still in dispute and I still forbid the passing of any data to third parties, if any data has been processed illegally since the default started, I shall take appropriate action.

 

I would also like to point out in this context that any attempt to pass this account to any other company or organisation, for example through selling of the alleged debt/account, is an offence under the Data Protection Act, until such a time as you comply with my original request.

 

For clarification of this I refer you Schedule 1 of the "Data Protection Act 1998" and section 3.1.4 of the "Data Protection Act 1998 Legal Guidance" as published by the Information Commissioner's Office, which outlines the definition of Lawfulness in relation to the processing of data.

 

1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-

 

(a) at least one of the conditions in Schedule 2 is met, and

 

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

 

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

 

3.1.4 Lawfulness

The Act does not provide any guidance on the meaning of “lawful”. The natural meaning of unlawful has been broadly described by the Courts as “something which is contrary to some law or enactment or is done without lawful justification or excuse”. (R v R [1991] 4All ER 481). The term applies equally to the public and private sector and to breaches of both statute and common law, whether criminal or civil. An example of information unlawfully obtained might be information, which is obtained as a result of a breach of confidence or in breach of an enforceable contractual agreement. Since 2 October 2000 it applies to a breach of the Human Rights Act 1998 by a data controller bound by that Act.

 

Furthermore, if you cannot supply the proper documents and you have entered any defaults against my name I require that you remove them immediately.

 

Please note that any legal action you may contemplate will be both vigorously defended and contested and I also will be seeking costs against MBNA Europe Bank Limited

 

I shall be carefully considering my options and next actions.

 

I await your response.

 

(Digital signature below)

 

If anybody has objections or a better idea please let me know

TA !!

[hellhasnofury]

Hello,

 

I do believe that your letter is really good and will give them plenty of thought, that if they understand what it means:D

 

Sometimes you have to wonder if they are plain stupid or just act plain stupid:lol:

 

Do you mind if I pinch a few bits please:D

[The Phantom]

Help yourself to bits of the letter or all of it, I pinched bits and bobs from other templates on this site and put the above together from that, so I would be the last to complain about anybody else doing the same

I also think it is OK, so will post it off as is

[dpick]

Hi if MBNA respond to your letter in the same way as they have responded to my three letters you will get an acknowledgement saying we will respond in full to your letter by dd/mm/yyyy and get no more than the normal demands for payment etc. I have just today sent LBA declare agreement unenforceable re s127(3) and refund charges and interest applied to charges to me in 14 days or see you in court. I don't expect any response (well maybe a don't be daft we are a big USA company go away)

 

all the best dpick:)

[The Phantom]

Yes, I know, but what can you do:)

They haven't been chasing the debt since April when they sold it to Link and Link has not been in contact since they entered criminal default, so it has been quiet, but they need to be told, don't they ?