mbna refuse to correspond.

[trojanska]

i had a credit card with bos for years,then it was taken over by mbna,interest went sky high and I fell behind.I requested my original credit agreement but they sent me my application form which did`nt contain all the necessary gumf that is required,this i wrote back and told them and asked for the proper document,they said they`d sent a "mailer"(i think that was the term)when they sent the mbna card,this card i never registered nor did i use it.Am i legally tied to mbna just because they sent me a card and a piece of paper,don`t i have to have signed something to say i agreed to their terms and conditions?????I thought i agreed to bos.This is where i get confused!!! Everytime they send a "give me your money" letter,i tell them to send me my document,i have placed an official complaint about their bullying and their intimidating actions (they made feel guilty for having an autistic child)and also the fact that no credit agreement has been sent,their final response held no apologies,and they just went on about the "mailer".Rightly or wrongly i told them i did`nt care about their credit agreement i want my bos.I received a letter the other day saying they will only correspond about the matter if told to do so by the financial ombudsman.So i have written to the oft,trading standards and fos.If they have what they need to enforce the debt why have`nt they passed me over to a debt collector or taken me to court....is this a good sign??I`ve nearly finished you`ll be pleased to hear!! what is a S.A.R and what does it do and i`ve been reading some other posts,what is section 85??? thanks for taking the time to help me,

[ian1969uk]

The debt is unenforceable unless they can produce a signed credit agreement that contains all of the prescribed terms. It looks like they don't have this, hence their attempts to bully you into paying. You are right to assume that if they had the document they would be taking action by now, so stay strong in the face of their attempted intimidation.

 

An SAR is a Subject Access Request, and it means that for £10 they have to send you everything they have on you. It might be worth doing this as this should include the credit agreement if it does actually exist.

 

Section 85 of the Consumer Credit Act 1974 states that, every time a credit token (eg credit card) is reissued (so all after the original card) then the creditor should send a copy of the executed agreement with it. None of them do, relying instead on the credit card mailers they send attached to the card. It is our contention that this doesn't meet their obligations under S85. S85 states that, whilst in default, the creditor cannot enforce the agreement. Therefore, the theory is that all interest they have charges since the first card reissue should be refunded to the debtor.

 

This has not yet been tested in court.

 

Hope that helps.

[trojanska]

Thank you for your reply,must say 1969,what a great year!! Does this s.a.r have a time frame like the credit agreement?And they have to comply? i`m sorry i`ve not got a clue wot i`m doing so please be patient!!And they owe me all that money??i never knew!! They owe me all the interest and charges from the time they took over my card if they don`t produce the correct agreement???!!! If they can`t/have`nt produced my original credit agreement should i carry on paying my pro-rata offer?can i send the s.a.r request now or wait for the credit agreement time-frame to run out?thanks for your help,take care xx

[ian1969uk]

They have 40 days to respond the SAR, and yes they must by law respond. The MAXIMUN fee is £10.00 so don't let them tell you that you have to pay more. You can send the SAR immediately.

 

You can stop paying lawfully after they have had 12 working days to produce the credit agreement, as they are then in default of your request. Some prefer to then leave it a further calendar month as they will then have committed a criminal offence.

 

It's your call, really, but it's lawful to stop paying after the 12 working days.

[trojanska]

i have had this months statement and i`ve noticed that they have`nt charged me any fees,lots of interest but no fees,this has made me feel uneasy,what`s going on?are they playing ball or do they have something up their sleeve?Why will they only correspond with me if told to do so by the FOS,do the FOS protect them? thanks again for your time and helpxx

[ian1969uk]

The FOS is supposed to mediate between creditor and debtor to sort out problems.

[trojanska]

please don`t dispair with me,but what are mbna gaining by only corresponding when told to do so by the FOS?? Are they messing with my head?? thanks for helping me,take care xx

[ian1969uk]

Because they don't know what to say to you.

[trojanska]

am i right in thinking that if they can`t produce my bos credit agreement,that technically they never bought the credit card account as it it did`nt properly exist:idea: ,so even by mbna sending me a "mailer",they can`t enforce the debt because there is no binding agreement between us?? I think i am slowly getting there!!! Thanks for your patience,take care xx:)

[ian1969uk]

The debt exists, it's just that there is no recourse available to them to pursue you through the court. They can prove that you used the card through transactions etc.

[trojanska]

i really don`t have a clue do i ??? sorry:sad:

[trojanska]

my head is spinning and the tears are`nt too far away!!! Please can someone tell me what i should be doing.I requested my cca months ago but did`nt send the fee,that is when they sent me my bos application form,i requested again my agreement 25th may,with payment via recorded delivery,so my 12 days is coming close.do i send a s.a.r now,if i do,do i send it to bos or mbna,if it`s bos i have`nt got a clue what the account ref is.if they can`t enforce the debt is it the case that they accept my offer of payment or maybe they will write it off? I know they piled the interest on but because i don`t have my credit agreement i don`t know what rate i agreed to,so don`t know how much they`ve over-charged me.i`m slowly sinking:cry:

[standingupformyself]

Send the SAR as soon as possible, send the cheque/postal order with it, also enclose a copy of your ID, driving licence, utility bill, something like that. Give them your full name and address, date of birth etc... are you sure you cannot find an old statement somewhere with the account reference on it?

Don;t panic, we will all help you through this...... Get the SAR off in the post and read other peoples threads, also read the FAQ's thoroughly. You sound so worried but you mustn't...... deep breath and come back here with any other questions. xx

[standingupformyself]

recorded delivery too.......

[trojanska]

don`t be angry!! i send the s.a.r to bos because that`s who i got the card off or mbna because they took over the card??? thank you xx

[standingupformyself]

MBNA... definately, cos that's who you are paying money to now...... You are still beign anxious, stop it!!!!!! No one will get angry with you here, ask all the questions you need to xxx

[trojanska]

hello Standing fanx for your help,wot will i achieve by sending a s.a.r? is it not enough that they can only produce an application form,which isn`t a credit agreement cos it does`nt contain the right gumf.xx

[standingupformyself]

Hi..... I would say go for the SAR because you can then work out how much they owe you, you know already how much you owe them.. Send a reminder letter about the CCA, you really need it in black and white, if they can produce the agreement or not. MBNA cannot produce my CCA, however as they owe me as much as I owe them, under advice and encouragement from others on this site I am putting the lack of CCA on the back burner for now.. and taking the route of reclaiming the charges back.... The principal being, if you take the route of letting them know the debt is unenforceable, then it appears you cannot reclaim your charges, you are on dodgy ground there...... However when (and if) MBNA cough up and my account with them is clear I will then take a different stance with it all. I will (hopefully) use the lack of a true executed copy of my CCA to get them to remove all defaults from my file, there is also the possibility that I can try to reclaim all interest paid onto the account, on the basis that MBNA are unable to proove all terms and conditions. x

[trojanska]

thing being Stand,how do i know what i can claim for,all i know is that when they took the card over the interest soared up,but not having an old statement really mucks things up as i don`t know exactly how much the interest increased or can i claim all the interest back but on what grounds??? oh to be bloody intelligent!!! Hubby is gonna have to dig around in all cupboards and drawers tonite when i`ve gone to work!!!

[standingupformyself]

It appears that everyone (inlcuding people who have spoke to MBNA) are claiming 24.9%, and it is the fees that you are claiming back. Paid Referral Fees, Late payment fees and so on... But thats all on the statements.

As for claiming the interest back, I am not at that stage yet, so cannot tell you anything more than I have so far,,,,,, But I hope to be a lot more knowledgable about it in time!

I think also, you should open a new thread in the CCA section, the real experts lurk there!!!

[trojanska]

got this lovely letter from mbna this morning,i`ve sent me £1,they`ve not cashed my cheque but i know they`ve received the request so it`s up to them wot they do with the money,i`ve done my part of the cca.the letter went...only a small fraction of our customers set out to deliberately avoid making repayments(i`m paying a token payment so they`re getting something) and when we have evidence that this is the case,we apply sufficient resources to persue them.those of our cutomers who do get into financial difficulties usually talk to us(they`ve had my financial statement,our family situation and of course they wrote telling me that they would only correspond when the FOS told them to) and the problem can be resolved to our mutual satisfaction(payments we can`t afford!!)these are now our choices:

a)appeal to you sense of humour with the hope that you will contact us to negotiate a settlement.

b)give your account to our solicitors with instructions to take the matter to court,possibly resulting in a bankruptcy order being issued against you.

c)assign your debt to a third party who will continue to persue you for outstanding debt.

then it goes on blah,blah blah about phoning today and how they may be able to avoid default.

yours sincerely Matthew Mcgrath head of customer assistance.

 

I know it`s another bully letter but i did`nt think they could do this if the account is in dispute,and like i`v said before,when like a muppet i first requested my agreement all those months ago and did`nt send my £1 they did send my application form with bos,this not having the right gumf does`nt stand as a credit agreement,then the penny dropped and i did it all according to advise £1 fee and recorded delivery,so i know i have to go through the whole 12 days and 30 days before i can start,am gonna send for a s.a.r,but wondered if anyone could come up with a letter to send back to Matthew to show i know what i`m on about(ha ha) and that his tactics won`t work on me.thanks xx

[ian1969uk]

a)appeal to you sense of humour with the hope that you will contact us to negotiate a settlement.

 

I assume you mean sense of honour but I like your version better!

 

I sent them this, you can adapt it to suit your needs if you want to:

 

Alliance & Leicester Credit Card

ChesterBusinessPark

Chester

CH4 9FD

 

23/5/2007

 

 

 

 

Dear sir or madam

 

Re: account number xxxxxxxxxxxxxxxxx

 

I am in receipt of your letter from Matthew McGrath, Head of Customer Assistance, and dated 17/5/2007.

 

Once again, I am appalled at the conduct of MBNA. Your threats to sell this account on to a third party are both toothless and unlawful. Let me explain.

 

I recently sent you a request under Section 78 of the Consumer Credit Act 1974. To date, you have not complied with this request. You sent me simply an application form that contained absolutely none of the prescribed terms required under the CCA 1974. As things stand, this alleged debt is completely unenforceable, even in a court of law.

 

Moreover, this application form was not signed by anyone from MBNA/A&L and therefore you could never claim to have executed this agreement. This means that all interest payments incurred since the account began have been charged and retained unlawfully due to the fact that you have NEVER had a right to enforce any agreement (or application form!).

 

This is in addition to your default under Section 85 which was explained fully in my earlier correspondence.

 

Laughably, your most recent letter claims that it is your final attempt to demonstrate good faith to resolve this matter. If this is your final attempt, may I respectfully request you explain when your other attempts were? I have written to you countless times over these matters, and all you do is send me a letter saying you will investigate and get back to me by a certain dates. These responses never arrive. Instead, all you do is carry on trying to pressure me into making a payment. Given your continuing default under Sections 78 and 85, my ongoing complaints, and the completely unenforceable application form you sent me, I am not obliged to offer you any payment towards this alleged debt. Note, this is me acting completely within the law, not something that could be said for yourselves.

 

I trust you are familiar with the Office of Fair Trading guidance on debt collection? If not, may I suggest you read it in the near future as every single one of your recent actions is completely against these guidelines when a debt is legitimately disputed. These actions by you include:

 

• Repeated attempts to pressure me into making a payment.
  
• Threatening me with a default.
  
• Threatening me with court action.
  
• Threatening me with the selling of this account to a third party.
  
• Stating that you will register information on my credit records.

You cannot lawfully do any of these things and I demand that you stop these threats immediately.

 

Let me make it abundantly clear. This alleged debt is completely unenforceable, even in a court of law. In fact, you will owe me money due to the defaults described above, and to work out exactly how much this is I have recently sent you a Subject Access Request, so I can be sure of the exact amount of interest applied to this account since it’s inception. You can be sure that this amount will be far in excess of the outstanding balance, so a payment will be owed to me.

 

I give you a final chance to simply set that balance to zero and save yourselves some money.

 

Should you proceed with selling this account to a third party, I will send any such third party a copy of this letter and all correspondence between us so they can see that you have unlawfully sold them an unenforceable debt. As they would also incur all liability on this account, they will actually have to make me a payment. I am sure you can see that they would not be happy with this.

 

Please stop these meaningless threats immediately and turn your attentions to actually addressing the issues raised in my many letters to you.

 

I am copying this letter to my local Trading Standards Officer as she is now involved in investigating your conduct. Your actions are threatening your fitness to hold a credit licence, and I suggest you begin to take this seriously.

 

All future correspondence demanding payment will be ignored. I refuse to keep spending money on sending you recorded delivery letters which you never reply to. I will only partake in further correspondence which actually addresses these issues and undertakes to rectify your defaults under Section 78 and 85 of the CCA 1974.

 

Be warned, any further threats will be treated as harassment and I reserve the right to seek compensation for distress caused by this behaviour.

 

Yours faithfully

 

ian1969uk

[trojanska]

morning Ian,that is a booty of a letter,thanks alot,hope he chokes while he reads it!! hope everything is going ok with you,take care xx:p

[SteveH2508]

Great letter Ian.

 

Might I suggest you remove the Account No. from the letter?

[ian1969uk]

Oops, account number removed, cheers.