Slartibartfast -v- MBNA (Now with Cabot)

[car2403]

I can't find a template that fits neither, so use this;

 

Dear Sirs,

 

I refer to your Default Notice issued under s.87 Consumer Credit Act 1974, dated XX/XX/XX and received by myself on XX/XX/XX. I would also refer you to my letter dated XX/XX/XX - I enclose a copy of this letter, along with proof of postage/recorded delivery to yourself dated XX/XX/XX, in which I made a request for information under s.77/s.78 Consumer Credit Act 1974.

 

The Consumer Credit Act allows a Creditor, or their agent acting on an original Creditors behalf, to issue a Default Notice under Part VII of the Act. As Part VII of the Act refers to "Default and Termination", I assume that you intend, by issue of this Notice, to Default the alleged agreement that is in question.

 

Firstly, without complying with my request, above, within the prescribed period, (as outlined in Regulation 2 of the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983) you will be in default of such request. As such, s.77(4)/s.78(6) will apply;

 

s.77(4) Consumer Credit Act 1974;

If the creditor under an agreement fails to comply with subsection (1)—

(a)he is not entitled, while the default continues, to enforce the agreement; and

(b)if the default continues for one month he commits an offence.

 

s.78(6) Consumer Credit Act 1974;

(6)If the creditor under an agreement fails to comply with subsection (1)—(a)he is not entitled, while the default continues, to enforce the agreement;and(b)if the default continues for one month he commits an offence.

As such, due to this date falling before the date of Enforcement under your Default Notice, I will formally request that you reply to this letter to confirm that the Default Notice has been rendered null and void by your default under my request to you as stated above.

 

PLEASE ACCEPT THIS LETTER AS A FORMAL OBJECTION TO ANY FURTHER ENFORCEMENT ACTION BEING TAKEN ON THIS ACCOUNT WHILE YOUR DEFAULT WITH MY REQUEST CONTINUES.

 

I am writing to inform you that this dispute still stands and has not been resolved.

 

As this account is in dispute and you were aware of this and are continuing to carry out collection activity, I now feel that you are in breach of your obligations under;

• The Office of Fair Tradings Collection Guidelines – s2.8;

o “i. failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

• The Banking Code – s.13.6

o “k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

• Your Consumer Credit License

Therefore I must ask you to take notice that you must cease all collection activity with immediate effect. The alleged credit agreement you are relying on does not provide you with permission to continue to contact me regarding this account, either by post or by personal contact, be that by telephone or visits to my property. In fact, OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you persist in sending "doorstep callers" to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction from the Court.

 

I also deem any further collection activity, of any nature that involves contacting me in relation to this account, an act of personal harassment, for the reasons outlined in this letter. Please ensure that your system is updated to reflect this, as I will bring any further letters or phone calls to the attention of the Police, to whom I will make a formal statement regarding your conduct given I have already warned you your behaviour causes me to feel harassed.

 

I am of the view that your continued harassment of me puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by calling me, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded and used as evidence in any further formal complaint.

 

I should also advise you that any action taken in enforcement of this agreement while in dispute will be vigourously defended, relying on our correspondance to date as a complete defence to such action.

 

I will expect a letter from you within 7 days of your receipt of this letter to confirm that the Default Notice you have issued has been nullified and no further action will be taken until this dispute is resolved. Failure to comply with this request will result in an Application Notice being placed with the Court seeking an Injunction against you until such time that you have complied with my request. I also reserve the right to issue legal proceedings against you for the removal of any Default information recorded against me with Credit Reference Agencies, should such Application be refused by the Court.

 

Yours faithfully,

 

I think this will scare them off. If it doesn't, it opens the way to the next steps and covers all the bases I can think of.

 

Don't forget to send this by recorded delivery, or get proof of postage at the very least, as you may need to be able to prove the date sent/received at a later stage.

[Slartibartfast]

Ah, yes, thats what I would have written.

 

Thanks muchly car.

[car2403]

I did go off on one for a moment there... It's like Manic Depression, just that I have moments of clarity over legal argument rather than moments of mania! (Although, they are probably one and the same, IMO!)

 

Good luck with this, keep us posted...

[Slartibartfast]

I'm a little puzzled at the chronology of apparent events. According to annualcreditreport.co.uk I had a default placed on file on the 29th November by MBNA. I'm assuming this is correct since it shows a 'D' and explains DF, default. I received a the Default notice from MBNA on the 17th December ( post 46 ) which was dated 13th December. Surely this is a breach of S88(2) ?

[rory32]

Surely this is a breach of S88(2) ?

Yes applying a default before issuing a default notice is definately against the rules.

[Slartibartfast]

Had a phone call from a DCA with a withheld number. Arrogant sounding man had to phone back twice but he was told in no uncertain terms that the account(MBNA sold it on?) was in dispute and that I would not talk to anyone on the telephone.

Apart from MBNA having registered a default two weeks before the date on the notice they sent me they still have sent nothing but the original application form and latest T&C. I have noticed and asked the question on another thread where someone is saying that updated T&Cs can be sent as fulfilling part of the CCA request. This is the first time I'd seen/heard this. Anyone else have knowledge of this?

 

Copying and Pasting:

 

"from Reg. 7 of the 1983 regulations a follows:

 

Copies Of Agreements Or Security Instruments Where The Agreement Or Security Instrument Has Been varied

7.

(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either

(a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied; or

(b) an easily legible statement of the terms of the agreement as varied in accordance with section 82( 1) of the Act.

(2) Where a security provided in relation to a regulated agreement has been varied, every copy of the security instrument relating to it given to a debtor, hirer or surety under any provision of the Act shall include either

(a) an easily legible copy of any document varying the security; or

(b) an easily legible statement of the terms of the security as varied."

[car2403]

I've just replied to that post;

 

There's are an argument that this regulation produces a circular result, as in order to "vary" the original terms there needs to be a term in the original agreement or the original terms that allow such a variation to take place.

 

If there is no term in the original agreement, of which a copy will suffice for a s.77/s.78 request, how can they prove that there was a term in the original terms and conditions without being able to produce them?

 

It could be that your creditor is hiding behind the regulations, so I'd suggest that you challenge them on producing the original terms that show the terms can be varied at a later date if no such term appears in the original agreement.

 

Of course, some creditors can use this legitimately, but be on your guard here, I'd say...

[Slartibartfast]

Of course, some creditors can use this legitimately, but be on your guard here, I'd say...

 

Is it legitimate to decline sending the original terms and condition if they have been specifically requested? Is this perhaps a good time for S.A.R - (Subject Access Request) request and will it ultimatlely make any difference?

 

Also MBNA have written saying they will not correspond further and have apparently sold the account on.

[car2403]

Is it legitimate to decline sending the original terms and condition if they have been specifically requested?

 

Yes, because there is no formal requirement to send them where there is a term in the actual original agreement that allows variation of the terms at a future point in time - if there is no such term, or they are relying on the original terms (not within the agreement document) that allow variation, they must supply the original terms under the Act and regulations that allows such variation to comply with the request. If they don't, they are in default under s.77(4)/s.78(6) and can't enforce until they do.

 

Just because you ask for them doesn't mean they have to send them if there isn't a legal requirement under the CCA request to do so.

 

Is this perhaps a good time for S.A.R - (Subject Access Request) request and will it ultimatlely make any difference?

 

If you want to see what they hold, then definately, but that's the difference between a CCA and a DPA request for information.

 

Also MBNA have written saying they will not correspond further and have apparently sold the account on.

 

If they don't reply to a DPA SAR you can take enforcement action against them to get the Court to order their compliance.

 

I'd suggest they are talking about not replying to further correspondance in that they won't discuss this particular issue with you as they have nothing further to add - it doesn't mean they can get out of their legal obligations of providing you information in response to a formal request, such as a s.7 DPA SAR.

[mrmarmite]

Chris, i do fully understand and see where you are going with S.A.R side of things (going through this with barclay card)

plz correct if wrong BUT when you S.A.R a creditor you are requesting all information they have on record for that account. all info means all info dosent it?

 

mine with b-card at start sent nowt, took them to court then got statements, threatened them again for rest and got 300 pages of transcripts of telephone conversations and other bits, stomped on them again for CCA this time i got T's&C's (still no application form)

 

S.A.R with the £10 stat fee, you are requesting ALL info they have on you, IF they have CCA (executed or not) this should be included,

 

p.s your gmac claim, was that on mortgage or loan? i got mortgage (bad credit) with them ATM

[car2403]

Oh, you've got a can of worms there mrmarmite, as I (being a scrupulous creditor) could argue that terms and conditions are not personal data that comes under s.7 as you aren't "personally" subject to that data - i.e., it doesn't contain your personal data in it, the document (presumably!) being of standard construction. This isn't my opinion, but I've seen threads where it has happened.

 

Actually, reading s.7 gives ownership of description as to what you are and are not personally subject to the data controller - how many people have had that in response to a request? I would bet my house (well, it's owned by the mortgage company anyway!) that none have, as it doesn't happen in practise.

 

My GMAC claim was for charges applied to a mortgage account.

[mrmarmite]

me have opened lots of cans and intend to open a lot more this year

 

ty for gmac. next last question (i know start me own thread up) are you still with g-mac or have changed ?

[car2403]

me have opened lots of cans and intend to open a lot more this year

 

ty for gmac. next last question (i know start me own thread up) are you still with g-mac or have changed ?

 

I only sued them after I'd moved property/changed to another company.

 

Incidentally, I SAR my current mortgage company (Platform) who didn't seem too happy about it, so I haven't pursued my charges claim with them - I'll wait until I've moved/changed again before I consider it, as I don't want to rock the boat at this stage.

[mrmarmite]

i was with platform b4 i moved to gmac, by responses i had had from gmac about charges they just as bad. my intentions are to sar the cra's clean up and try for high street lender

[car2403]

i was with platform b4 i moved to gmac, by responses i had had from gmac about charges they just as bad. my intentions are to S.A.R - (Subject Access Request) the cra's clean up and try for high street lender

 

Yup, me too - good luck!

[Slartibartfast]

I now have two letters from a DCA ( DCRI ). One intoducing themselves as the agents who now own the MBNA debt. The other saying they have been instructed by MBNA to extend a generous offer ( "have you considered borrowing some money?" - pah!), offer expires in 14 days. The default notice gave until 7th Jan to cough up and these letters are both dated the 4th. I'm more than a little confused. Has the account been sold rights and duties all and is this significant?

An SAR at £10 is out of the question right now, perhaps MBNA will go to court?

Looking back through this thread and trying to piece together all of the opinions and facts in other threads I'm still in a state of uncertainty. I have the original Application Form which has a stamped date and apparently ubiquitous squiggle of a signiture by someone at MBNA. The prescribed terms look like they were indeeed on the back of the form and from what I've picked up over the lasts few months I'm now thinking that despite being told otherwise earlier on that this may be enforceable. Obviously I'd be happy to hear anything contrary to this but I want to be realistic. I don't have the wherewithall and the immediate prospect of satisfying demands and ultimately I'd like to avoid BR but the interim is a difficult prospect and on the edge of giving up. It gets to us all alike in one way or another I guess.

[mrmarmite]

hehe, OK

 

send CCA to new people, as debt collectors they have already dropped them selves in it by mentioning that you "should" consider taking out a loan to pay off old debts is BIG NO NO thay cannot do this i'm sure it mentioned in OFT debt collector guidance (will look later just to be sure)

 

as to your application form, does it contain the prescribed terms? amount, interest rate, frequency of repayments? if no to any of these (as application form it prob wont have any) it's unenforceable

[mrmarmite]

if it does not contain the terms then dont worry about sending CCA. these new people wont have the legal right to collect, just write to them stating they dont havethe LEGAL right

[Slartibartfast]

I typed up in Post 20 the terms that were on the back of the photocopied form. If this was was not on the original, and I don't recall, they have done a master job of convincing me it was. Looks like the terms are all there and there have been loads of recent dicussions about the CCA being a document that can span pages.

They may be acting against OFT guidelines but MBNA have acted precipitously and apparently unlawfully yet I don't expect a raised eyebrow or slapped wrist with any complaint.

[car2403]

It's unlikely the debt has been lawfully assigned without your knowledge - but not impossible.

 

It's more probable that an equitable assignment has taken place, where the DCA has been asked to collect the outstanding debt without taking on the rights and duties of an owner.

 

A CCA request to the DCA (if one hasn't already gone to the original creditor, in which case tell the DCA the account is already in dispute) along with a DPA SAR to the original creditor should throw up answers to most, if not all, of your questions.

[mrmarmite]

ok just looked at post 20 (ty)

 

1 We will from time to time choose the credit limit and notify you of this.

 

some will say yes but from way i see it when you took this out there is no credit limit set, the table you posted is for cash advances so irelevant

 

correct me if wrong plz some 1

 

i think it's duff, has any 1 else ever filled out an application form with this much info on it?????????????????????/

[car2403]

They can say how the credit limit will be notified and what they will do to communicate it - "we will from time to time choose the credit limit and notify you of this" would be enough.

 

It can be a piece of toilet roll - if it has the prescribed/required terms on it and conforms to s.60/s.61 and the regs, the creditor can enforce it against the debtor, application form or not.

[mrmarmite]

corrected (git ) but as put like that then yes. still want to know if any others CAN remember filling an "application" form with that much info on it.

 

it only recently that OC's have changed app forms "once we have received your application form we will send you a credit agreement to sign" in the small print. 6 months ago they were throwing money at you just for sake of it.

[Slartibartfast]

Oh dear Lloyds. CCA request and two subsequent letters asking for T&C which were not included with the agreement sent. They sent a letter basically saying go and fetch it from your branch - there may be a fee payable. I gave them the fee surely they can't insist I go to fetch the documents from their offices?

[car2403]

Oh dear Lloyds. CCA request and two subsequent letters asking for T&C which were not included with the agreement sent. They sent a letter basically saying go and fetch it from your branch - there may be a fee payable. I gave them the fee surely they can't insist I go to fetch the documents from their offices?

 

Quite right - they can't and shouldn't.

 

Sounds to me like they don't have them, but can't bring themselves to actually say the words.

 

Write back and say no, you aren't going to the branch and you want confirmation of whether they have a signed, properly constructed agreement and relevant (original and varied) T&C's or not.

 

"Put up or shut up", in other words!