Are MBNA in default of YOUR cca request?

[redsue]

oh I and I also reckon if this is their response they don't have a copy of the agreement...

[Alphageek]

I trust this response meets with your expectations; if you have any further queries please contact Dave Walker on 01244 674207. I am enclosing a copy of "Our commitment to you" leaflet blah blah blah....

 

I wonder if this Mr Walker's middle name is "fire".

 

Dirty turncoat

[angry cat]

Received this letter this morning - can anyone give some advice please

 

 

 

Couple of inaccuracies, me thinks

 

1. A section 85 mailer is not a 'true copy of an executed agreement' - they are trying to blind me with science

 

2. MBNA are allowed to signatures and certain other specified information - what information is this then

 

3. As you account has no legal dispute - what? you have only sent me a copy of my existing terms and conditions - therefore MBNA are still in default.

 

4. The information we supply to the Credit Reference Agencies must be factual - but this isn't factual information as MBNA are in default and have no permission to process my data

 

I'm about to draft a letter back and would appreciate any advice - they obviously believe they have fulfiled there end of the deal but I think they are deliberately trying to mislead.

Thanks:)

 

 

Hi redsue,

 

Looks like your in a similar position that I am in with Morgan Stanley.

 

MBNA are obviously using the same old excuse of:-

the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, regulation 3.

Regulation 3 states that subject to the following provisions every copy shall be a 'true copy'. It then goes on to set out what may be ommited from a copy. Section 3(2)(a) states that any signature box, signature or date of signature (apart) from in a copy agreement sent under 63(1) of the "Act" may be ommited. In every other sense the copy must be a 'true copy'.

Apart from the things that the Regulations say can be ommited from the copy, the copy must be a 'true' copy of the executed agreement. To be an executed agreement it would have had to have been signed originally and contain all the terms of the agreement.

 

IN THE CASE OF A DISPUTE THE LENDER WOULD NEED TO PRODUCE THE ORIGINAL, SIGNED AGREEMENT IN ORDER TO BE ABLE TO ENFORCE IT.

 

Basically, redsue MBNA are attempting to deceive you, but they would, wouldn't they?

 

Love AC

[zubo]

I wonder if this Mr Walker's middle name is "fire".

 

Dirty turncoat

 

I do hope you are not being serious....

 

would you elaborate please, or is this really truly humour???

 

Z

[Josie8]

Hi redsue,

 

Looks like your in a similar position that I am in with Morgan Stanley.

 

MBNA are obviously using the same old excuse of:-

the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, regulation 3.

Regulation 3 states that subject to the following provisions every copy shall be a 'true copy'. It then goes on to set out what may be ommited from a copy. Section 3(2)(a) states that any signature box, signature or date of signature (apart) from in a copy agreement sent under 63(1) of the "Act" may be ommited. In every other sense the copy must be a 'true copy'.

Apart from the things that the Regulations say can be ommited from the copy, the copy must be a 'true' copy of the executed agreement. To be an executed agreement it would have had to have been signed originally and contain all the terms of the agreement.

 

IN THE CASE OF A DISPUTE THE LENDER WOULD NEED TO PRODUCE THE ORIGINAL, SIGNED AGREEMENT IN ORDER TO BE ABLE TO ENFORCE IT.

 

Basically, redsue MBNA are attempting to deceive you, but they would, wouldn't they?

 

Love AC

 

 

and credit card mailers aren't true copies of your original agreement - they're only a statement of current terms and conditions so don't comply with the requirements of the CCA request.........

 

They're just hoping they can pull the wool over your eyes ......

 

Game on and Good Luck

[davefirewalker]

I wonder if this Mr Walker's middle name is "fire".

 

Dirty turncoat

 

 

I am somewhat concerned here........

 

please elaborate as to your impositions!

 

or have I totally misunderstood your post

 

Dave

[redsue]

davefirewalker - i think alphageeks humour has been misunderstood.

In a letter from MBNA it asked me to contact a Dave Walker - and with you taking on the world with CCA requests - I don't think any harm was meant at all.

[zubo]

davefirewalker - i think alphageeks humour has been misunderstood.

In a letter from MBNA it asked me to contact a Dave Walker - and with you taking on the world with CCA requests - I don't think any harm was meant at all.

 

that is what I alluded... however it would be nice if ag replied to that effect

 

Z

[Cristal]

oh I and I also reckon if this is their response they don't have a copy of the agreement...

 

I've rec'd a similar letter from MBNA, all smoke and mirrors about the 'credit card mailer' 'actually serves as your copy of that credit agreement for the puposes of Section 85 of the CCA 1974'. The letter ends 'If we do not hear from you within 8 weeks of the date of this letter, we will assume that the matter is closed'. I'm tempted to wait the 8 weeks and see if MBNA's definition of 'closed' is the same as mine!

 

Incidentally, Morgan Stanley also goes on at lengthin the same vein!

Cx

[Alphageek]

I am somewhat concerned here........

 

please elaborate as to your impositions!

 

or have I totally misunderstood your post

 

Dave

 

Yes Dave it was a joke as Redsue and Zubo pointed out.

 

In fact, your thread against the world was one of my earliest subscriptions on here and it served to kick my butt in to action and sort my creditors out.

 

No offence meant at all. Sorry for the confusion.

[davefirewalker]

Yes Dave it was a joke as Redsue and Zubo pointed out.

 

In fact, your thread against the world was one of my earliest subscriptions on here and it served to kick my butt in to action and sort my creditors out.

 

No offence meant at all. Sorry for the confusion.

 

thank you for explaining.

 

no offence taken

 

Dave

[redsue]

With thanks to everyone for their comments especially ian1969uk in help with drafting this letter. I'm going to send this to MBNA tomorrow.

 

REQUEST FOR TRUE COPY OF CREDIT AGREEMENT UNDER SECTIONS 77/78 OF THE CONSUMER CREDIT ACT 1974

 

Dear Plonkers

 

ACCOUNT NUMBER: xxxx xxxx xxxx xxxx

 

Thank you for your letter dated 13 June 2007, which I received on the 16th June. However, I am extremely concerned that you feel that MBNA has satisfied my request for a true copy of the original executed agreement and ask that you please take the time to read this letter.

 

I quote recent correspondence from the OFT.

 

“A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no ORIGINAL copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.”

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and I have received nothing in relation to my request, only a set of current terms and conditions. This can lead me to only one conclusion, being that no signed credit agreement exists in relation to this account.

 

I find it difficult to understand why you do not forward a copy of the original signed agreement if it exists and can only conclude that MBNA do not understand the Consumer Credit Act 1974 or are attempting to mislead me.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking. I am sure your legal department understands, that not providing this evidence would conflict with Pre-Action Protocol 4.6 and would make your position extremely hard to justify should this matter go to court.

 

On the advice of the Financial Ombudsman, I am now requesting a final decision in this matter from you. Should this decision not meet with my satisfaction, I will pursue the matter through the Ombudsman. The maximum timescale for you to give a final response to any complaint is 8 weeks. This time runs from the date of my original complaint, in this case that is the request for a true copy of the credit agreement, these time limits have passed and it is now 15 weeks from my original request. Therefore, you must provide me with a final response in this matter, within 14 days, including your proposed actions for this account, by 3rd July 2007.

 

Please note, you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with the credit reference agencies. Should you refuse to comply, you must within 14 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Should you fail to respond within 14 days, I will expect that this means you agree to remove all such data.

 

Furthermore, you should remember that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear legal dispute and therefore the following applies:

 

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.

• You may not add any further interest or charges to this account.

• You may not pass this account to any third party.

• You may not register any information in respect of this account with any of the credit reference agencies.

• You may not issue a default notice related to this account.

 

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

I look forward to your final decision on this complaint within 14 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

 

not holding my breath tho' let see what happens

I'm expecting the calls to start now on my hubbys account as its like groundhog day - no reply, no agreement, no correspondence....

[redsue]

Just thought I might start a quick resource for the benefit of everyone who is currently being pursued by MBNA (or DCA) for an 'unenforceable debt' as there seems to be a lot of us in the same boat.

 

Hopefully this may prove a useful resource for everyone when writing our letters of complaint to the OFT, FSO, Trading Standards and anyone else we can think of.

 

Can you add your username and thread details, if MBNA (or DCA) have not complied with your CCA request after both the 12 working days + 30 calendar days limits have expired. and the date the criminal offence began.

 

Also it may be useful to add whether you've received an improperly executed appplication form, current t&cs or nothing at all.

 

ok me to start

 

Redsue - MBNA default began 26th April 2006 - sent set of current T&Cs

 

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round.html#post729106

[Fullyskinted]

MBNA Default began 23/2/07. I received a poor copy of the Priority Application Form late May, not T&Cs, no credit limit etc.

 

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

[Josie8]

..............

Edited January 21, 2009 by Josie8

[wednesday1867]

I thought it was 12 + 2 for postage and then a further 30 days?

 

 

Sent my CCA request 30 April 07

 

Went into criminal default either 16 or 18 June 07

Said they didn't have it and i should contact someone else. Since i replied saying THEY should supply it, haven't heard anything else.

NOt using this at the mo tho, gonna get a refund on charges + interest and ppi + interest, will give me a zero balance and a few ££££'s to come from the nice people from Chester

[redsue]

well, well, well

MBNA have indeed produced a true copy of the original agreement sign way back in 1993 - very impressive! However, at first glance I do have a few issues with it - I'm going to have a good study of it and will let you know once I've picked it to pieces - they have sent me a copy of my current terms and conditions again but I was under the impression that it had to be the terms and conditions to which I signed up to.

[Alphageek]

Can you scan it and post a copy for us to see?

[gill5blue]

I sent my request for list of charges and CCA TO MBNA 22nd May 2007, recorded delivery, recieved list of charges £0.00 nil, but if they cannot supply the CCA I am going for 'unenforcable' and 'no aknowledgement'

sent reminder for CCA 14th June, recorded delivery. 12 plus 2 plus 30 days is 5th July, but I will sending no acknowledgement on 27th June(I will be on holiday on the 5th July) I owe about £3000.00 on MBNA Credit Card

Gill

[miss muppet]

Allegedly Jill eh? CCA Request 19 days and counting and alleged debt £1,600:)

[gill5blue]

Yes, allegedley

your only 1 week behind me, if we link hands we can beat mbna together

gill

[miss muppet]

I like it;)

[sunshine star]

just subscribing!

[redsue]

Heres the copy of the application form that MBNA have sent me to fulfil my CCA request - they also sent a recent statement and and copy of current terms and conditions.

 

 

The quality of this is really as good as it gets, there are parts of it that I can make out but other parts which are illegible.

Couple of things which stand out

- its illegible

- its an application form

- its includes no apr

- its includes no credit limit

- it has no terms and conditions attached

- there is nothing to say they can vary the agreement

- the date of their signature is incomplete

 

So I guess from this I can assume its improperly executed.

So I shall be writing back to Stuart Johnson in a suitably smug tone to tell him the agreement in unenforceable and to confirm this the document they will rely on in court - their arrogance is breath taking.

 

If anyone else has any comments - please feel free

[Fullyskinted]

OI! Get in the queue!