Ony vs MBNA (Continued)

[ony]

Just recieved:

 

You are in breach of the agreed terms adn conditions and due to the level of arrears a decision has been made today to place a restriction on this account............

 

 

Not to perturbed about this but would love some advice on forcing compliance...anyone?

[ony]

Just received:

 

I regret to read you are unhappy with the adminstration of your accoun. I would like to address the points raised in your letter:

 

 

1. Please find enclsed with this letter a copy of your original credit agreement and a full statement of account (there was no agreement or statement of account)

 

If a lender did fail to comply wityh S.78, that lender may be prevented from taking certain steps to enforce a credti agreement (until such time as S.78 was satisfied)-but the underlyuing credit agreement itself, togethr with the borrowers obligation to repay remain valid and intact. For the avoidance of any doubt, we would like to confrim that MBNA has responded in full to te request made under S.78 and in any event your credit agreement remains valid adn your boligation to repay remains intact. As such , the arrears on your account are still owing and due and until this sum is repaid your account wll continue to register negative information at the credit reference agencies.

 

2. We do not provide copies of the executred deed of assignment as this is business sensitive information

 

3. We have utilised the services of the collection agents GVI in the recovery of the outstanding amounts. This action was taken simply beacuse we work......

 

4....

 

5. In reference to your point of your account in dispute, I would like to draw your attention to the contract you sgined when you took out the credit card. Section 8d states that 'Unless you have a legal right to do so, you must not hold back payment or refuse to pay anything you owe us beacuse of a dispute between you. Currently your account is three payments in arrears totallyinh £957.13 and payment is due immediately.

 

 

...I am alos enclosing a cpy of our commitments to you (This was the only thing in the envelope!!)leaflet....which explains... If I do not hear from you in 8 weeks of the date of this letter we will assume that the matter is closed.

 

comments/advice please.

 

I have the POC for non-compliance and will start proceedings.

[ony]

My intended response, to be sent after proceedings iniated.

 

______

 

I am in receipt of your letter dated the 18th July 2007 in which you state you have my original credit agreement. The only documentation in your letter was an ‘Our Commitment to You’ pamphlet.

 

Therefore be advised due to MBNA’s continued failure n their obligation to provide a true copy of the original credit agreement for this alleged account and as per my earlier letters I have now initiated proceedings against MBNA for non compliance of said request under S.78 of the Consumer Credit Act 1994.

 

You, MBNA have not supplied my agreement for this alleged account and as such I am under no obligation to pay MBNA as in law no contract exists between us. For this reason I put you on notice that I have filed a claim in the county court for non compliance with the Consumer Credit Act 1974 citing your failure to satisfy my request for my alleged credit agreement under Section 77 (1) and Section 78 (1) of the Consumer Credit Act 1974. At the same time I have asked the court to make a declaration that the alleged agreement between us is void. Further I have asked the judge to order the return of monies paid on this account in the form of charges and interest paid and compensation for the continued inconvenience and harassment I have experienced from your actions in dealing with this matter.

[humbleman]

ony

 

Go for it.

[wednesday1867]

Ditto

 

Ill be filing this week, £250 jus to file

[ony]

Ditto

 

Ill be filing this week, £250 jus to file

 

hey wednesday,

 

I was over here http://www.consumeractiongroup.co.uk/forum/mbna/104386-mbna-no-cca-gimme-6.html#post1044538 and youve been posting there so just wondering what are claiming for;

 

a) all interest paid over lifetime of account or over the past six years,

b) interest on charges over lifetime of account or over 6 years.

[wednesday1867]

I may not be able to help, reason being, as youve seen, i signed up with MBNA in 2002, so im reclaiming all cash interest and retail interest over the last 6 years but it is also the life of the account

[JonCris]

Just received:

 

I regret to read you are unhappy with the adminstration of your accoun. I would like to address the points raised in your letter:

 

 

1. Please find enclsed with this letter a copy of your original credit agreement and a full statement of account (there was no agreement or statement of account)

 

If a lender did fail to comply wityh S.78, that lender may be prevented from taking certain steps to enforce a credti agreement (until such time as S.78 was satisfied)-but the underlyuing credit agreement itself, togethr with the borrowers obligation to repay remain valid and intact. For the avoidance of any doubt, we would like to confrim that MBNA has responded in full to te request made under S.78 and in any event your credit agreement remains valid adn your boligation to repay remains intact.Why? this advice is not only wrong it is also unlawful to claim they have legal rights which they don't As such , the arrears on your account are still owing and due and until this sum is repaid your account wll continue to register negative information at the credit reference agencies.

 

2. We do not provide copies of the executred deed of assignment as this is business sensitive information

 

3. We have utilised the services of the collection agents GVI in the recovery of the outstanding amounts. This action was taken simply beacuse we work......

 

4....

 

5. In reference to your point of your account in dispute, I would like to draw your attention to the contract you sgined when you took out the credit card. Section 8d states that 'Unless you have a legal right to do so, you must not hold back payment or refuse to pay anything you owe us beacuse of a dispute between you. Currently your account is three payments in arrears totallyinh £957.13 and payment is due immediately.

 

 

...I am alos enclosing a cpy of our commitments to you (This was the only thing in the envelope!!)leaflet....which explains... If I do not hear from you in 8 weeks of the date of this letter we will assume that the matter is closed.

 

comments/advice please.

 

I have the POC for non-compliance and will start proceedings.

 

 

See my comments above. Include it in your POC & report them to the OFT as it is a breach of the guidelines

[ony]

My intended POC; comments please.

 

+++++

 

On 18th May 2007 the claimant requested a true copy of the original executed credit agreement from the defendant under section 78 of the Consumer Credit Act 1974 (as amended). The defendant has failed to supply any agreement. The defendant had also failed to provide a copy of the original terms and conditions which were applicable at the time.

 

2 The Claimant contends that:

 

(a) The Defendant has failed to comply with a request made under s.78 (1) of the Consumer Credit Act 1974 (as amended) since dd/yyyy to provide a true copy of the executed agreement which has all the prescribed and required terms.

 

(b) The Defendant has failed to produce any agreement that complies with The Consumer Credit (Agreements) Act 1983 (as amended)

 

© Under s.78 (6) of the Consumer Credit Act 1974, if the Defendant cannot supply this information within the prescribed time they may not enforce the agreement and if the default continues for one month further, they commit an offence.

 

(d) The Defendant has continued, while in default and the account in dispute to add interest.

 

(e) The defendant is still enforcing the agreement and passing data onto credit reference agencies.

 

(f) The Defendant has continued to harass the claimant with repeated phone calls and messages on the claimants phone.

 

(g) The Defendant has with clear intention sought to misrepresent the law pertaining to S.78 of the Consumer Credit Act. To wit in their letter of 18th July 2007 they state “If a lender did fail to comply with S.78, that the lender may be prevented from taking certain steps to enforce a credit agreement (until such time as S.78 was satisfied)- but the underlying credit agreement itself, together with the borrower’s obligation to repay, remain valid and intact.

 

(h) The Defendant has unlawfully refused the claimants request for an executed deed of assignment contrary to S.78 of the Consumer Credit act 1997 claiming that ‘they do not provide copies of deed of assignment as this is business sensitive information’ contrary to their legal requirement to do so.

 

(i) The Defendant in their letter of 18th July continues to harass the claimant for payment despite the account clearly being in dispute through their inability to provide both a properly executed credit agreement and terms and conditions applicable at the time. However the Defendant cites from documentation they have unlawfully refused to supply the claimant stating ‘In reference to your point that your account is in dispute, I would like to draw your attention to the contract you signed when you took out the credit card. Section 8d states that ‘Unless you have a legal right to do so, you must not hold back payment or refuse to pay anything you owe us because of a dispute between you’. Currently your account is three payment in arrears…and payment is due immediately’.

 

3 the Claimant claims:

 

(a) As no proof of contract, and no proof of any contractual terms actually exists between the parties, that the agreement must be declared void.

 

(b) If the agreement is not declared void then In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3).

 

© As no proof of contractual terms exists that allowed the creditor to charge interest and charges then the Claimant asks;

(i) for the return of all charges and interests paid on the account MBNA. Interest to be compounded and at MBNA's own rate of 24.9% as per Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants);

(ii) interest on BOTH at 14.9% (to replace the money taken, using Sempra as precedent) or alternatively should the court see fit at 8%.

(iii) Interest under section 69 of the County Courts Act 1984 at the rate of 8% up to the date of judgment or earlier payment at a daily rate of xxxx.

 

(d) The removal of the account data and any defaults or negative markers registered with all Credit Reference Agencies;

 

(e) Court costs;

 

(f) Damages at the discretion of the court to compensate for harassment, distress and extra costs incurred by claimant.

[standingupformyself]

I am utterly fascinated, it seems excellent, but categorically (?) I am no expert, and hope to see someone with more knowledge than myself cast a critical eye over your POC....

It seems brilliant, perfect................

[ony]

I am utterly fascinated, it seems excellent, but categorically (?) I am no expert, and hope to see someone with more knowledge than myself cast a critical eye over your POC....

It seems brilliant, perfect................

 

Thx Standing.. I was totally winging it and just following the guidance of some really helpful people here abouts, like Joncris and yourself! All power to ya..

[ony]

BUMP!!

Can anyone advise on the POC!

 

Just got a call from MBNA on my answer machine. Some manager asking to discuss my letters (which I paded out somewhat). I may be getting somewhere!

[ony]

BUMP.

can someone please check my POC and give some advice. Otherwise I will go as it is....

[ony]

MBNA are threatening to take me to court which is actually what I want..given that I dont have to pay the court fee (save a fee bob up front). Is there any downside to wait for them to do this or should I initiate proceedings?

[Midget Gems]

Shouldn't you be the one taking them to court? It's worth every penny to do so. Once they get the court papers through they collapse faster than an England World Cup campaign.

[Thepower]

Loving this thread,

[ony]

*&%&^** The b%^^ards have found my original agreement!!!!

 

I received it in the mail only a few days ago. Very upsetting but time to shift gears and get my charges back (glad I didnt pay the £250 to initiate now). Here's my proposed letter:

 

************

I am in receipt of your letter dated 31st August 2007 attached to which appears to be my original credit agreement.

In your letter you remind me that there are 4 outstanding payments totalling £1268.28. It appears I must remind you that this account has been in dispute since 20th May 2007 instigated by my refund request letter of that date. From that time this account has been in dispute and as such NO INTEREST IS TO BE ADDED TO THE ACCOUNT; NO ACTION CAN BE TAKEN AGAINST ME; NO ADVERSE CREDIT REFERENCES OR DEFAULTS CAN BE LISTED AGAINST ME WITH CREDIT REFERENCE AGENCIES AND THIS ACCOUNT CANNOT BE PASSED ON DEBT COLLECTION AGENCIES. And lastly, I was NOT OBLIGATE TO MAKE FURTHER PAYMENT TO THE ACCOUNT.

.

However MBNA have continued to add interest to my account from the 20th May 2007 and as you are no doubt aware that is an unlawful action. I would ask therefore that you credit me the amount of interest charged since the 20th May 2007 to this account.

Further I am also asking that you now refund me the total amount of £2,338.40 as outlined in my reject Goodwill Letter dated the 20th July 2007 and addressed to Rachel Claridge Assistant Vice President, Customer Advocate Office; in which I state “I respectfully decline your further offer of good will in full and final settlement of my complaint. I repeat once again that I expect the immediate return of all charges and costs made on this alleged account from May 2001 to May 2007 totalling £2,338.40 which includes £763.00 of charges and interest of £1,575.40. I will accept the sum offered only as part settlement and on the clear understanding that I will pursue recovery of the remainder, with a County Court claim if necessary.” However further charges have been added to this account since my letter of the 26th May and

In summary;

• Please refund the amount of interest charged on the account since the 20th May 2007. This account was in dispute as of that time and NO INTEREST can be added to the account. Repayment should be made direct to my account
  
• I hereby renew my request for refund of unlawful charges made to this account totalling £2,338.40 which includes £763.00 of charges and interest of £1,575.40. Regardless of the wording of any automated letters sent to me, these charges constitute a contractual penalty, as the amounts bear no relation to the actual loss incurred by you in relation to my breaches of the terms & conditions of my account. I remind you that such penalty charges are legally unenforceable. Even if a term exists in the contract that authorises penalty charges, such a term would be void, as it would be a clear breach of the Unfair Terms in Consumer Contracts Regulations 1999, specifically sections 5-8.

In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

At the time of my initial request MBNA were currently applying interest at the rate of 22.4% APR for unauthorised borrowing. I have applied the same rate to my request in accordance with current consumer contract legislation, as you have unlawfully applied penalty charges that you had no right to, which therefore amounts to your unauthorised borrowing of my money. Further, you denied me the opportunity to invest funds unlawfully taken from my account, denied me the economic benefit of these funds in the first instance, and have been unjustly enriched having been able to re-lend, and profit from money that rightfully belonged to me, at commercial rates.

Please return the total amount of £2,338.40 within 14 days of the date of this letter.

I reserve the right to commence court proceedings without any further notice should you fail to comply with my request, I will also submit a 1974 Act complaint to the OFT

I formally request that you make payment to me directly by cheque ONLY.

Yours sincerely

[Thepower]

brilliant letter...

 

have you cheecked your credit report? maybe report them to the data registar??? for reporting to a third party whilist the account was in dispute?

[standingupformyself]

I am going to re-read various threads now on the basis of the above.....AS you know I applied for my CCA and got a letter basically telling me they didnt have it.... But few other people have received a letter such as mine, They are just going into default with most people and we are presuming (understandably) that they cannot provide it....

 

I wonder how many other people are going to receive their CCA's months after the request? It seems appalling that they are doing this, they are in criminal default after the first couple weeks, then 30 days..... you cannot suddenly redeem yourself and not be a criminal can you? Either they have got this information, or they haven't surely... why would it take so long to retrieve it, and where is the justification for it.....??

 

I hope that other people in similar situations as you Ony, are aware that this could happen.....

[ony]

Yea its a real pain in the **** but what can I do. Sent a complaint to OFT who replied that if they find the agreemetn months after they can still 'unforetunately' enforce the agreement. &*&%

 

Anyway onwards is the only way to go. Surprise surprise MBNA have nto responded to my earlier letter regards fees and charges so I am putting together my POC for them. As my letter states they continued to apply interest despite the fact that teh account was in default after my refund request and tehy couldnt find the agreement. Question, if they find the agreement X months after my CCA can tehy then expect to recoup all interest [and therefore charges] that they were criminal or is this then unlawfull????

 

I have the standard POC for charges and interest so thats OK, but for teh unlawful interest applied while account in dispute, will this suffice;

 

"The claimant further contends that:

 

from *********** to *********** teh Defendent continued to apply interest to this account despite teh fact that teh account was in dispute initatied by the Claimants refund request dated *****

 

(if it is unlawful to add interest when they ahve not provided the agreement i would add and the Defendents criminal failure to provide the original agreement upon the claimants request)

 

The Claimant claims;

a-return of interest amounting to ******

 

Cost allowed by the court

 

etc, etc

[ony]

Anyone out there that can advise much appreciated as I want to initiate proceedings ASAP!

 

thx

[ony]

BUMP!!!! any help much appreciated....

[ony]

anybody out there!!!!

[Thepower]

Get your thread moved to the "debt" forum by PM a moderator

 

 

and you will have you answers in minutes;)

[standingupformyself]

Hiya Ony

 

Could you PM me your email address? If you don't mind..

Thanks, x