Wednesday1867 vs MBNA***WON***

[wednesday1867]

Hello all....

 

 

Right this is my situation, i have filed with mcol for the charges thro HSBC and no want to reclam off MBNA.

 

Firstly im on a DMP with Payplan.

 

MBNA didnt agree to the monthly payment. I asked to cancel ppi last March, they didnt, they refunded me, but still keep charging me and they are also still charging me interest. I know for several months i paid late etc. So for these reasons i want to claim everything back off them and treat them with the contempt they have treated me.

 

I dont want to give them any of my new bank details, so ill be sending postal orders.

 

My questions, do i use this sar http://www.consumeractiongroup.co.uk/forum/bank-templates-library/516-1-data-protection-act.html even tho its for a credit card?

 

Also i have read some of the thread regarding the request for the original agreement, as previously stated i want to take them for everthing :grin: i signed my application form at a football match. Somewhere im sure i read a template letter for both 6yrs of statements and a request for the original agreement, now i cant find it. Can anyone point me in the right direction?

 

Do i need to send a copy of my driving licence as said in a different thread, or is the letter and £11 all i need.

 

Also any tips on how i can turn the knife, would be much appreciated.

 

Thanks.

[glav]

Hi Wednesday,

 

Yes, use the SAR letter with £10.00 fee. MBNA have a delaying tactic of writing close to the 40 days seeking ID so good idea to send off copy of driving licence now, gives them no excuses.

 

I would send CCA request and £1 fee separately, you will find the template letter in the link below.

 

Send both recorded delivery to

 

Customer Advocate Office

MBNA Europe Bank Ltd

Chester Business Park

Chester

CH4 9FB

 

http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html#post162367

 

Hope this helps

 

glav:)

[wednesday1867]

Just an update, sent cca today 30 March, sent SAR last middle of last week, only thing is, the recorded delivery details, went thro the wash ooops

[wednesday1867]

*Update and questions *

 

 

SAR Sent 26 April ( Recorded Delivery got washed :o )

 

CCA Sent 30 April (Signed for 1st May)

 

 

Today (10th) i received a letter from MBNA (Dated 4th), thanking me for my recent communication (dont mention which communication ) and that they are investigating my complaint and will provide me with full response by May 27th. If i have other queries regarding this letter contact the Customer Advocate Office on such and such number, signed Steve Bailey.

 

Now by my reckoning, the SAR's 40 days is up on 5th June.

 

Now the CCA request is it 12 working days from letter date or received date and do i need to give them the 2 extra days? Either way it will be up between the 15th and 18th of this month.

 

So i cant see them replying to my CCA within 3 days, so this letter must be relating to the SAR? Even though they say, i will have a full response, 9 days before the end of the 40 days they are given?

 

Now some noobie questions :grin:

 

I understand the SAR process, but could do with double checking the cca request in laymen terms

 

I understand it to be,

 

If they dont or cant supply your original credit agreement within 12 working days, the account goes into dispute.

 

When the account is in dispute, i keep paying them, but they cant sell or transfer the balance or debt to another party?

 

If they cant produce it within a further 30 calendar days. i contact Payplan, tell them to stop paying MBNA, with the reason being that they cant produce the correct agreement and it is now unenforceable.

 

If they cant produce the agreement, as well as reclaiming all the charges, i can then request a refund of all the interest i have ever paid them?

 

Obviously time wise, they still have over a month to produce it, but going on the date they received my request, the account would go into dispute on Wednesday, only 4 working days away. So just want to clarify what and what i cant claim for under the CCA.

 

Should i be doing these side by side or should i have gone for the charges first?

 

Thanks for any help.

[wednesday1867]

*Update*

 

Well today is the 18 May, postman has just been and delivered nothing

 

So by my reckoning, my credit card account is now in default? In 30 days from today they have commited a criminal offence?

 

So i should now wait the extra 30 days before i contact them?

 

 

Also no statements yet, grrrrr i want to see how much i can claim lol

[wednesday1867]

Ive received a letter from MBNA regarding my CCA, here goes, ill post this in the other thread regarding agreements, to maximize it, cos im not sure on the next move....

 

ANyhow it reads,

 

Dear Mr Wednesday

 

I refer to your recent letter received on 1st May 2007. Unfortunately we are unable to obtain a copy of your original application.

 

MBNA now admnister your account however, your original application was made to HBOS, you will need to contact them to obtain this information.

 

Yours Sincerely

 

Sally Morgan.

 

 

I didnt ask for the application, i asked for the agreement, does the use of the word application, mean its a delaying tatic? I dont need to contact anyone else do i? IF MBNA want me to carry on paying them, then surely they have to produce this document?

 

So whats the best next step?

 

What a time to stop smoking

 

Thanks for any help or advisement offered

[joneshousehold]

Wednesday, you are right, the account went into default 12 days after MBNA received your request.

 

The letter you have is incorrect. If you look at the wording of S78 it says

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The Act goes on to define a creditor in Section 189 as

“creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

So it is of no concern to you that MBNA do not have the agreement. It is not your job to write to another party to get the agreement. MBNA should get it from HBOS and make sure you get it within the timelimit.

 

If the failure continues for another 1 month after the first deadline then the creditor commits an offence.

 

Most people have stuck to the later date to stop payments as it is a stronger position should the matter go to court because the creditor has to admit they commited an offence. It is thought this might be enough to make them cautious about taking the alleged debtor to court.

 

So I suggest you write to Sally, point out that it is their responsibility to get the agreement and at the moment they have gone into default. Until this is rectified they should take no further enforcement action. I would even be inclined to add that you will confirm when they have complied and until you do the account remain in default.

 

Good luck and keep us informed

[wednesday1867]

Wednesday, you are right, the account went into default 12 days after MBNA received your request.

 

 

 

So it is of no concern to you that MBNA do not have the agreement. It is not your job to write to another party to get the agreement. MBNA should get it from HBOS and make sure you get it within the timelimit.

 

 

Thanks Joneshousehold, thats what i thought.

 

Well the letter they sent me is dated 8th, i will word a letter to them this weekend and get it into the post Monday, im not very good with all the legal mumbo jumbo, so will post it in here, to see if it covers all the bases.

 

Least now the account is in default, so nothing can happen to it.

 

I'm still unsure on what happens if they cant produce it,

 

I stop payment until they produce it.

 

They cant change interest on balance, till they find it.

 

They cant default me on the debt.

 

I can claim back unlawful charges.

 

Can i claim back interest ive paid on the account?

 

Anything else, ill post.

 

Thanks for any and all help

[joneshousehold]

I'm still unsure on what happens if they cant produce it,

 

I stop payment until they produce it.

 

They cant change interest on balance, till they find it.

 

They cant default me on the debt.

 

I can claim back unlawful charges.

 

Can i claim back interest ive paid on the account?

 

Anything else, ill post.

 

Thanks for any and all help

 

Of the above, you cannot claim back unlawful charges as there is no agreement in place. It has no effect on you at the moment but can be reconsidered if the agreement materialises.

 

There is some reason for believing that there has never been an agreement (because they cannot find it) then they have never held the right to charge interest. It is something to consider when you find out if the agreement actually exists.

 

I suggest you write to them about the point already suggested and we can look at where you go next after that.

[wednesday1867]

Right as ive said, im not particular good with legal stuff, so this is my first draft of a reply, any pointers anyone?

 

 

Dear Ms Moran,

 

In reference to my request (dated 1st May 2007) for a true executed agreement, under the Consumer Credit Act 1974 (Sections 77-79).

 

I thank you for your letter in response dated 8th 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 obtain a copy of your original application” 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.

 

Secondly, again I quote “ MBNA now administer your account however, your orginal application was made to HBOS, you will need to contact them to obtain this information”

 

I draw your attention to section 78 of the Consumer Credit Act 1974, which reads as such: Section78 Duty to give information to debtor under running-account credit agreement

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

So as you now administer my account, you should hold the agreement and you should now forward me a copy.

 

I must also point out, as im sure your aware, you had a time limit of 12 working days to provide me with the agreement. You received my request 1st May, which means my account with you is now in dispute and you are unable to take any further action to enforce the debt. If my agreement is not supplied by Friday June 15th, you will be committing a criminal offence, which I will be dealing with accordingly.

 

 

I look forward to hearing from you.

 

 

Yours Sincerely

 

 

Is this suitable?

 

 

Thanks

[joneshousehold]

OK, Here are my thoughts on the draft

 

3rd paragraph - the copy you need to be supplied with should be a true copy of the one you signed. The creditor can in fact omit certain parts such as your signature but otherwise it should be a true copy of the original. You need to tweak the wording a bit. It could be

...the copy agreement I am to be supplied with, must be a true copy of the one signed by myself and ...

 

The paragraph that reads

So as you now administer my account, you should hold the agreement and you should now forward me a copy.

needs to be changed. I think it would be better to say something like -

Section 189 of the Act defines a creditor as 'the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law' and this means that you are the creditor who must supply the documents and information required under Section 78. If these have to be obtained from a third party, it remains you responsibility to do so.

 

Lastly the final paragraph needs a bit of alteration. The final sentence should be altered to something like

 

If my agreement is not supplied by Friday June 15th, Section 78(6)(b) states that 'if the default continues for one month he commits an offence' and I will be dealing with this situation accordingly

 

How does that look?

[wednesday1867]

Thanks JHH, i knew the last bit would need work, i couldnt find any details of the criminal offence or the legal term for it.

[wednesday1867]

Still reading round, after 12 days is the account in dispure or default and whats the difference? if any?

[Jeff2000]

Hi Wednesday1867,

 

 

If you receive nothing after 12 working days, then they are in default of your request! They cannot then enforce the agreement. You may then cease payment.

 

After a further calender month, they have then committed an offence. You may then report them to OFT, Trading Standards and Financial Ombudsman etc if you wish. Some people think this is a waste of time, but I personally would report them. The more we report them, the better.

 

Hope this helps.

 

 

Best wishes, Jeff.

[wednesday1867]

Thanks for everyones input so far.

 

Reply sent today.

[wednesday1867]

In reference to POST 4

 

27 May has come and gone and no statements as yet, so no idea what that letter referred to.

 

Hopefully ill get them soon................... and a reply to my reply regarding the lack of an agreement lol

[standingupformyself]

Hi again Wednesday. I have been given various advice about the non compliance of my CCA request. Check out my thread and the advice given to me...

I intend to continue my claim for unlawful charges, then when and if sucessful use the lack of CCA to remove the defaults from my credit file.... there is also the possibility of claiming back interest paid to MBNA, but that is way down the line.

I suppose it depends how much you owe to them, and how much you calculate they owe to you

[wednesday1867]

Hello standing, i currently owe them around £3900, theres soom ppi they continue to charge me, even tho they have it on their system i cancelled it last March, need to send them a letter to get it back again! Im not sure how much they have deducted off me until i get the statements, just have to wait til i receive them. Probably go for the lack of agreement tho, might be easier just saying you owe me "x" amount, you dont have an agreement, unless you write off my debt i will persue for the charges, interest thro the courts and then keep going for eveything else, so might be worth it, just to write it off. Then i can go for consolidation or whatever else i can

 

Its all waiting at the minute, gets a bit boring at times

 

Ill be keeping an eye on your thread tho, see how things go for you, hope they are easy and straight forward

[wednesday1867]

Well still no statements, by my reckoning theyve got til middle of this week..... anyone else getting them so close to the 40 day time limit?

 

Still no reply regarding my cca reply, 2 weeks and the offence is committed.......

[wednesday1867]

Keep the thread ticking over.

 

Well i sent the sar 26 April, the recorded delivery ticket went thro the wash, so cant tell when they received it. I enclosed a postal order, so no idea if thats been cashed, but by my reckoning, their 40 days is up tomorrow or Wednesday. Obviously im yet to receive my statements and doubt i will in the next two days.

 

I think i will post the non compliance letter tomorrow, i have questions regarding this tho.....

 

What is the procedure and it can go to court, so what can you claim for in court? The whole process im unsure about to be honest.

[lookinforinfo]

Wednesday, the Law take the view that a letter is delivered that day after posting. You can check with the Post Office, if the counterfoil didn't get washed, as to when the postal order was cashed.

 

Whenever these companies are in breach of an Act, you have a choice to make. One way will result in them perhaps getting a criminal record and a fine.

If that company have been absolute b*******s with you, then you may get

some [or even a lot of] pleasure from this. But it is not financially any help to

you.

Another way is to threaten to inform the OFT or The ICO about the breaches,

but not actually report them. Or you won't if in return, they do things that you want. Like removing defaults from your credit file, or writing off your

debt as the debt is unenforceable. That way, even if the original agreement

turns up at a later date, you still have nothing to pay. That is a material

benefit to you. And only you can make the decision which may perhaps

depend on whther your desire for revenge outweighs the financial gains.

And of course, if the company does not play ball, you can report them as a

last resort.

You have to think about what is best for you and then try to get it.

[wednesday1867]

Obviously im yet to receive my statements and doubt i will in the next two days.

 

 

Well the statements, or should i statement information turned up today, either day 39 or day 40, so expect to wait til the death

 

I have a few points and questions for anybody that can help

 

Firstly it was from Rachel Claridge, nothing new there from reading other threads.

 

Secondly, said this was done for free and to " please find enclosed your postal order for £10" well it wasn't :o

 

Offered to resolve this matter with a goodwill gesture of £780 to be credited to my account, i didnt or havent even asked for a refund yet but from reading other threads again, i seem to think this would be about a third or half of the actual amount of charges before interest?

 

Lastly, when i did this thro HSBC, i received all my old statements, what i received today, well all it is, they have just printed all my transactions onto several copies of A4, each transaction has a "fee type" but not an actual monitary value? Only time i see a monitary value is on the charges for being over my limit. In the letter Rachel says a late fee was £25, but how can i add up charges including fee type "19" "Over limit fee charge"

 

I was really looking forward to adding all this up, but cant until i get the price of the overlimit fee charge. Can anyone help

[standingupformyself]

the charges are all the same.... What dates are you looking at?

[wednesday1867]

the charges are all the same.... What dates are you looking at?

 

All £25? Im sure they were more than that ah well

 

My first charge was July 2002, my last charge was 01 March 2006.

 

A total of 28 Late Payment Charges and an embarrasing high number of over limit charges :o No wonder they wouldnt help me

 

So do i get the interest rate off my latest statement?

 

All i can claim for is late fees and Over Limit Fee Charges?

 

**Edit**

 

Your right standing from Rachel

 

"Our view is therefore that the charges that you agreed to are valid, fair and enforceable. Prior ro July 2006, term 3b of your credit agreement (Sure i've got one Rach? You haven't sent me it yet hehe) with us clearly stated that you must pay £25 each time your payment had not reached your account within one oday of your payment due date, or when you exceeded your credit limit, or a cheque was returned unpaid.

 

Saw the first part, totally missed the rest of the £25 charges....

[wednesday1867]

Just noticed as well

 

 

21 May 07 Payment Protection Refund.

 

Now i havent seen this before and i today sent a letter complaining that im still getting charged even tho i cancelled it, looks like i may of been beaten to the punch.