Mum v MBNA

[indebtstudent]

I've just recieved the worst letter I have ever seen in my dealings with any company.

 

I don't have it in front of me but basically MBNA (Abbey) are pursuing my mum for a debt on a credit card. She knows she owes them money but believes lots of it is charges. We've sent SAR and have recieved little.

 

I also sent the harassment letter and another pointing out that the amount was in dispute and also complained about the fact thier rep said the charges are lawful.

 

Bascially they said we'll except a puny proportion of the cash which leads me to suspect they know they're on to a loser.

 

They wrote back saying they had no recording of the call (how convenient) but noted that thier rep put a note on to say my um was 'unwilling to pay'. Great so they base thier actions off half of the story.

 

They also said the amount it not in dispute (erm yes it is, that's what courts are for, if companies could just settle things by saying no it isn't in dispute then we wouldn't ever get to court would we?).

 

It also says I note you have reuqested that we do not contact you by telephone... however we need to keep all lines of communication open. (It wasn't a request it was about harassment - you are harassing her and now you have said you are going to continue).

 

I want to come up with a letter rubbishing thier points (which shouldn't be too hard) but I also want to complain in the strongest possible terms to any and all regulators. I'm even thinking of going to see my MP.

 

As it stands right now I'll have to check the SAR date (she has the stub for the rec del) but I'm sure they must be close to the deadline if it has not passed.

 

So what I've got so far is you have so far broken the data protection act and are operating outside of the guidelines your industry is supposed to follow.

 

It points out that the account is in arrears for ten of the past 12 months (which I didn't know) but the charges will hardly have helped. I need to get them off her back pronto and I intend taking this idiots to the cleaner.

 

Any and all help appreciated, particularly if you have expereince of dealing with Shabby.

[indebtstudent]

Bump

[indebtstudent]

Feedback needed, I'm away for a week but if there's nobody around I'll have to take a stab at the letter myself.

[sammy59]

i would try something like this, just change the wording to suit your situation

 

Dear Sir,

 

 

 

Your Ref: xxxxxxxx

Account Number xxxxxxxxxx

 

 

 

With reference to your letter of 9th April,regarding your intention to register default information with Credit Reference Agencies on the above numbered account, I wish to advise you that this account is in dispute, ongoing since 8th January 2007.

 

 

 

There is a court claim in progress on this account, number xxxxxxx

 

 

 

In accordance with s13.6 of the Banking Code you are not permitted to register such information when an account is in dispute.

 

 

 

Yours sincerely

[indebtstudent]

I want to put something stronger than that though, they can't just say we'll communicate with you by whatever means we want, what's my next step re that? Complain to the regulator or threaten them with the police?

 

Oh they're also in breach of the Data Protection Act (exact dates to follow) and this is the only reason a prelim and then LBA haven't been sent.

[indebtstudent]

bump

I'm going it alone tongith so anyone with any imspiration post here ASAP!

[indebtstudent]

This is what I've got, its hella long, but I like giving them work to do. I'm also sending DPA non compliance letter as it was sent 19th April!!!

 

Feedback on the letter appreciated, I'll probably just get back, we disagree, but I can't stand to let a lie go unanswered. Its only a draft so I realize I could be more precise in who I am going to complain to, but ths gist is don't try to pull a fast one I can see it coming...

[indebtstudent]

I thank you for at last replying to my letter, although a month hardly seems an appropriate length of time to respond to such an urgent matter. I also note you totally ignore the comments I made regarding the disorganised nature of your past communication. This does not come as a surprise since several letters I have sent to your organisation in the past have been totally ignored.

 

Now I must address the main body of your letter, specifically your comments in relation to the amount owed, telephone communication and your wild assumption in relation my frame of mind and intention to pay.

 

It is not at all helpful for you to attempt to manipulate the facts and state that the amount is not in dispute. I agree that your charges are set out in the agreement Abbey makes with credit card customers. Such an agreement is commonly called a contract and it is common knowledge that you can only a genuine pre estimate of your costs. Unless you are prepared to share such information with me, or indeed produce it in court at a later date, then I refuse to pay such unlawful charges.

 

You go on to make reference to the Office if Fair Trading and I admit I made an oversight in this regard, I should have stated in my previous letter that I am well acquainted with the OFT’s position on credit card charges. I am also well aware of the distortions which occur when companies present their own opinion of the OFT’s guidelines to customers. You state that you disagree with the OFT’s interpretation of the law but this is of no consequence – the OFT exists to police the activities of financial institutions such as Abbey.

 

Here the above comments take on a new meaning, I concur that Abbey has indeed reduced its charges to £12, but the OFT definitely did not say that £12 was a fair or reasonable sum. This is merely the maximum threshold at which the OFT itself would take the company concerned to court. Only a court can decide if a charge is a penalty charge or indeed a lawful charge.

 

If you have carried out your threat to register a default with a credit reference agency then you have abused your privileged access to such records. You have a duty to record information accurately and as I have informed you the amount is in dispute you cannot make such a decision. If it were the case that, where a customer states that an amount is in dispute, the company can sole the matter by saying it is not then there would be no need for civil courts in this country.

 

It is convenient that the telephone conversation was not recorded, and yet your advisors opinion is recorded. It is true that I stated that I did not wish to discuss the matter over the telephone, and as you persist with calls I have already informed you constitute harassment I have no choice but to complain to the regulatory bodies mentioned in my earlier correspondence.

 

I must decline your offer of £100 as I do not yet have the proper documentation, I had a receipt for a Subject Access Request which was sent on April 19th. Abbey have not complied with this request and are in clear violation of the data protection act. Abbey are notorious for obstructing consumer efforts to assert their legal rights in this manner so I shall be adding my voice to those who have already complained to the relevant regulatory bodies.

 

You state that my most recent letter indicates that I am unwilling to pay my account yet I have never made such a statement. An extract from my previous letter is located below.

“Pease be advised that I am not prepared to make any payments relating to the above account as I fully intend to recover any unlawful charges that you have imposed on the account. As such the account is now in dispute and therefore any enforcement actions you may threaten cannot commence until this matter has been resolved.”

 

Nowhere did I say that I would not pay what I legitimately owed, however only a fool would pay an amount which was in part made up of charges which can be challenged in court. I have no doubt you will insist that you will win in court, but this is the reason the courts exist, to decide what is and is not lawful. In fact the last paragraph on the first page of your letter would support the argument that your charges are unlawful since you clearly state that the charges reflect “our costs when dealing with such defaults of customer overall”. You go on to say that other providers behave in this manner but I fail to see what relevance this has, I could point out that other providers have also successfully been challenged in the courts on this issue; although it would be more precise to say they settle out of court to avoid disclosing their costs and risking a judgement against them.

 

You state that you believe your charges are enforceable and this is the only matter I intend to clarify, you refer to the terms and conditions and yet I have no copy of these conditions, I would appreciate if you would be so kind as to provide the various terms and conditions which were in force in the time I have operated the account.

 

For your information there is no requirement to provide identification when making a Subject Access Request, indeed Abbey have cashed the cheque I sent without such documentation. This leads me to wonder how much of what you can say can be trusted.

 

I fully intend to initiate legal proceedings once I have the information you are required to provide by law and indeed I shall have no alternative but to secure a County Court judgement if you do not comply within seven days of the enclosed letter.

 

To sum up then I reject your offer of £100 because I believe the charges levied to my account were and remain unlawful penalties. Any default you have recorded with a credit reference agency will be challenged for this reason. Abbey have flouted the law in relation to the data protection act and so you will have to forgive me if I do not take your word that the charges are lawful. I fully intend to pay the balance minus any unlawful charges, and I am aware that, should a court case be successful there will be additional fees payable by yourselves as well as interest.

 

Indeed it seems bizarre that you would accept an amount of £1821.36 (as per your letter dated April 4th) against a debt of £4553.39. If you are confident that this amount is correct then there should be no delay providing the relevant documentation as you will have no problem defending your charges I open court.

 

For your information I have no intention of referring to the Financial Services Ombudsmen since the banks have been trying to avoid defending a court case in relation to these fees for fear of setting a precedent. My next step is to take enforcement action regarding the Subject Access Request that you have all but ignored, only then can I ensure that I pay the amount I legitimately owe. If you cannot understand the plain language I have used here then further dialog is useless and we can only settle the matter in court.

[Russjo]

Hiya,

Just to correct you in one area of your letter. A Data Controller is entitled to do three things:

 

a) Ensure that they have received the appropriate payment for the request

b) Have received the request itself

c) Satisfy themselves that the person requesting the information is indeed the subject.

 

Therefore, they can request additional information if they so wish.

[indebtstudent]

They stated that they could not do it without a passport (sent in the post hmmm with all this Id theft, are they crazy?), then went ahead and did it anyway.

 

I'll re word it a little but they're clearly just trying it on.

[indebtstudent]

Letter amended and will be sent tomorrow, also enclosed Data protection non compliance and the suggested letter above re the default...

 

The actual default letter came from MBNA so I sent them one too. Its war now and they have no idea...

[indebtstudent]

No response as yet, wonder if they will take any notice...

[Russjo]

The only advice I would offer (and I don't mean to offend) but calm down a little. Don't forget you want a judge to see you as a reasonable claimant and however angry you may feel (and I can appreciate why you're angry), you still need to be reasonable

[indebtstudent]

Erm there's nothing I've said that isn't true (as opposed to thier letter), so I stand by what I said.

 

I do not approve of thier (attempted) bully boy tactics.

 

I suppose I should give up on fighting the good fight and take solace in the fact that thier templated responses mean little...

[Russjo]

Hey I'm on your side and haven't suggested retracting anything or implied that what you have stated is untrue. I'm also not agreeing with their actions

[indebtstudent]

Point taken thought, I will be the model middle aged guy now (even thought I'm not), think I just needed to get that out of my system even though I know I will get rubbish in response.

 

I'm going to meet my MP when I've got a few more claims under my belt, this stuff is unreal!

[Russjo]

I know it's frustrating, but you will come out on top, so don't give them the satisfaction of winding you up. Let off steam on here by all means, we can all sympathise. Good luck with the meet with the MP when you get to it, not sure I would have the energy after all the claims I've got going on

[indebtstudent]

I was thinking of doing that very much after the bulk of my work is done...

[indebtstudent]

Update Abbey are now playing hardball, they have passed the account to a DCA despite the fact I clearly pointed out that they could not default an amount which is in dispute. My mum doesn't need credit but I'm going to have any default removed as a matter of principle.

 

I'm going to send a letter to the DCA (they claim to own the debt which seems to be the exception rather than the rule). I'm basically going to say contact MBNA (that's who Abbey's card is with) and check why this account has been passed to you (ie I've clearly told them the amount is in dispute). I might even send a copy of the letters I've sent to Abbey and MBNA.

 

Can't believe this happens in this supposedly progressive country, definately seeing my MP when all is said and done... They will pay!

[indebtstudent]

Particulars of claim to follow (date will be added before I send...)

 

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

 

2. The Claimant has an account number ("the Account") with the Defendant which was opened on or around (Insert date)

3. On 19th April 2007 the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant.

 

4. The Defendant has failed to comply despite a reminder being sent on 27th June 2007.

 

5. By virtue of the Defendant's failure to comply with the Subject Access Request the Claimant has suffered damage.

 

6. The damage caused is:

 

 

The Claimant has had to draft several letters, one to remind Abbey of its responsibilities under the Data Protection Act, another pointing out that the Banking code states that banks will not issue defaults where an amount is in dispute, and finally a letter to MBNA stating the same.

 

The Claimant had to spend several hours researching her legal rights in such a situation.

 

Each letter took approximately half an hour to compose and I estimate approx ten hours have been spent researching this area of law. I believe it is not unreasonable to claim a rate of £9.00 per hour for this work as a legal professional would have accomplished these tasks sooner but such a professional would have made a significantly higher charge. Accordingly the I seeks damages of £103.50, notwithstanding any costs incurred should it be the case that a default has been wrongly registered on my credit file.

 

7. The Claimant seeks an order that the Defendant do comply with the Claimant's Subject Access Request

 

8. Under the terms of Section 15(2) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant's Subject Access Request is not included within the scope of Section 7 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.

 

9. Damages and costs within the discretion of the Court.

 

 

 

I believe that the contents of these particulars of claim are true

 

 

Signed:

 

 

Date:

[indebtstudent]

My understanding is that I take the default issue in the main claim (after I've got the info?) I thought I would just toy with putting it in here. Is this ok to use? Any info gratefully recieved.

 

I'm rather miffed that they've passed the matter to a DCA, their own code of conduct says they will not do this. I'm planning on sending a letter to the DCA but they tend to ignore them anyway...

 

Still it has to be tried.

[indebtstudent]

Need to get the court claim in but my mum is in hospital

 

Oh well in time they will rue thier actions...

[indebtstudent]

Is this ok? The deadline is WAY overdue now and they've still done nothing. Also it doesn't appear that my mum would be exempt from the court fee so I'm going to pay it and ask the court to waive it (I have the form just not too hand so can't recall what it is called). Cannot believe just how bad Shabby are...

[indebtstudent]

Still no sign of statements, need to take them to court but busy helping my bro at the moment, Abbey are really going to regret this...

 

At least they've stopped ringing.

[indebtstudent]

Right I'm sick of this! My letter did provoke a response, they offered a further £250 as a 'goodwill' gesture. I was going to write back thanking them for this offer but point out that it is impossible to judge if it is fair because they have not complied with the date protection act. Off the top of my head we sent the SAR approx three months ago.

 

I also sent a reminder letter so I don't think there is any point ocntacting them about it again, I feel it is time to take them to court for non-complaince. I would have reached this decision sooner but my mum has been in hospital for an operation.

 

On the positive side the recent letter was much more cordial, and I do feel it is worth highlighting the way they have totally ignored the law. I believe my mum would consider taking this matter to the press and/or local MP to bring some attention to the issue.