Interesting Convo with the MBNA Legal Dept

[Fullyskinted]

If they are in default then they are not allowed to put adverse reports on credit file. Check your CRA's now and print a record of whats shown. Then write putting them on notice that in advent of them adverse reporting while they'te in fault you will issue claim in court to get them removed etc.

 

Just re-reading the thread... I already HAVE a missed payment listed on my file thanks to MBNA. Never had one on any of my credit history before!

 

I have asked them to remove it in the next 14 days in the letter (which Ill put up when Im happy with it) - do I ask them to remove it in 14 days or I will issue a claim in court for them to remove it?

[Josie8]

Just re-reading the thread... I already HAVE a missed payment listed on my file thanks to MBNA. Never had one on any of my credit history before!

 

I have asked them to remove it in the next 14 days in the letter (which Ill put up when Im happy with it) - do I ask them to remove it in 14 days or I will issue a claim in court for them to remove it?

 

 

Yes and add that you will ask mthe court to order production of

, a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by myself in respect of this alleged debt.

[Fullyskinted]

Thanks Josie.

 

The letter is just getting longer and longer! Up to 5 pages now!

[Pliny the Penuriosus]

Fullyskint - in the Wilson car case the Lords stated that the Consumer Credit Act could not be side stepped by the Creditor through recourse to common law. It is CCA or nothing for these people.

 

Quite right hisholiness

 

Their Lordships went on to say that if a creditor had an unenforceable agreement then as well as breaching the clear intent of the CCA 1974 their Lordships could not conceive of any other means by which the debt could be enforced even if it did mean the consumer was unduly enriched.

 

So the guy from MBNA is talking absolute rot.

 

Incidentaly as well as being a breach of the OFT guidelines (claiming powers you don't have) it could also be a breach of the 2006 Fraud Act which is as follows:

 

The Fraud Act 2006 came into force on 15th April 2007

The act is small as it contains only 16 sections plus 3 schedules.

All Theft Act deception offences are abolished to be replaced by 3 new fraud offences: fraud by misrepresentation.......fraud by failing to disclose information and fraud by abuse of position..

Under section 1 a person is guilty of fraud if they are in breach of any offences in sections 2,3,4.

Under Section 2 representation must be made dishonestly which is established under the two-stage test as set out in Rv Gosh (1982) QB 1053, 75 Cr App R 154 in which the defendant was dishonest by the standards of ordinary people

Subsection (1)(b) requires that the representation is made with the intention of making a gain for himself or causing a loss or risk of loss to another. Loss and gain are defined in section 5 as being money or property

Section 3: Fraud by failing to disclose information

18. Section 3 makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

• "7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

• More specifically, section 3 states:

• 3 Fraud by failing to disclose information
  A person is in breach of this section if he-
  • (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
    
  • (b) intends, by failing to disclose the information-

o

(i) to make a gain for himself or another, or

ii) to cause loss to another or to expose another to a risk of loss.

I think section 3(b)(ii) would be prevalent in a number of cases.

Now, can they get out of this by saying that the FSA etc are happy that they can just close people's accounts based on "a commercial decision" and don't actually have to give a specific reason?

Specifies losses are explained:

5 "Gain" and "loss"

(1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.

(2) "Gain" and "loss"-

• (a) extend only to gain or loss in money or other property;

• (b) include any such gain or loss whether temporary or permanent;

and "property" means any property whether real or personal (including things in action and other intangible property).

(3) "Gain" includes a gain by keeping what one has, as well as a gain by getting what one does not have.

(4) "Loss" includes a loss by not getting what one might get, as well as a loss by parting with what one has.

I should send Wayne a copy!

[Guest Battleaxe]

Wayne works in the Customer Advocate Office. They are trying to call your bluff. They can't quote case law, because there isn't any. We have worked hard educating Mr Wareing and his pals regarding the consumer laws.

 

The trick they have left in their arsenal is BLUFF and DOUBT. there is no where for them to go and they have to fight hard to retain the upper hand.

 

It is our job to make them comply with the consumer laws.

 

Once we introduce the Fraud Act into the equation, this brings in an element of criminality with their continued intransegence not to comply. they never counted on the fact that we have amongst some bright people. the other lesson they have to learn is , that not all debtors are stupid.

 

MY POC Section 85 non-complaince regarding MBNA quotes Section 3 of the Fraud Act 2007

[redsue]

FS - this thread just gets better and better.

I'm currently writing my ' ha ha ha' letter after I've picked myself up laughing from the document they sent. So I'll keep an eye out as I think we are around the same point.

BA - what has been MBNAs response to your case for s85? Have they defended and do you have a court date yet - that I would gladly pay to see.

[Fullyskinted]

Guess what? Another missed payment placed on my credit file.....

 

And some new mail aswell! Offering me a partial settlement!!!

 

Can you all please check my thread at your earliest convenience, particularly the letter I just posted which needs to go off to them asaFp! many thanks in advance

 

http://www.consumeractiongroup.co.uk/forum/mbna/97485-mbna-cca-received-5-a.html

 

FS

[itsamomentintime]

Guess what? Another missed payment placed on my credit file.....

 

 

dear oh dear. more ammo for you

[jalex_uk]

His name is Wayne Hatton and his title is Corporate Solicitor.

[Guest Battleaxe]

I was going to stay out of this, but can't resist.

 

he is speaking out of his,.,,,,

 

It is uneforceable, BUT..the debt will remain and they will punish you by marking your credit file...so what......

 

You make a statement that the data being processed is erroneous, make sure the CRA's know that the Information Commissioners Office is now involved regarding processing erroneous data. You then make a claim through the courts for sdamages for processing ewrroneous data.

 

Wayne Hatton does not have any case law to back his statement. If he had, don't you think MBNA would have been down on the rest of us with unenfoceable agreemants like a tone of bricks.

 

Just make sure you keep the account in dispute.

 

MBNA don't have any other ideas, because they don't exist. I am sure MBNA would have had me taken to the cleaners if they could do it. I have challenged them to take me to Court, They haven't because they know their actions to date are unlawful.

 

My credit file reads like a horror story courtesy of MBNA, but I am letting it go, until I can the CRA's into court with MBNA and then they can explain their actions to both the Judge and the Information Commissioners Office

 

Besides I have another cannon in my armoury.....MBNA will be doing a lot of explaining eventually.

[Fullyskinted]

Well, the letter is going off tomorrow, inlcuding putting them on notice about the late payments on my credit file. The FOS are involved now too...