Slartibartfast -v- MBNA (Now with Cabot)

[Slartibartfast]

I already wrote again asking for T&C adding the relevant bit of CCA1974. They sent the agreement which I posted (post 33 here). It's surely beyond expectation that they don't have the T&C ? Meanwhile they are still adding interest to this loan acc and charging my current acc with the late/non payment fees at £25. AArrrggh!!!!

[car2403]

I already wrote again asking for T&C adding the relevant bit of CCA1974. They sent the agreement which I posted (post 33 here). It's surely beyond expectation that they don't have the T&C ? Meanwhile they are still adding interest to this loan acc and charging my current acc with the late/non payment fees at £25. AArrrggh!!!!

 

Make that "unlawful interest" and "unlawful charges", if there's no agreement!

[Slartibartfast]

AS I said they sent the agreement (post 33), which does contain the prescribed terms, but not the T&C referred to. I take it that they are still in default as long as they do not supply me with these and this is what you mean?

[car2403]

Make that "unlawful interest" and "unlawful charges", if there's no agreement!

 

I stand corrected - that post should have read;

 

"Make that "unlawful interest" and "unlawful charges", if there's no enforceable agreement! ;)"

 

AS I said they sent the agreement (post 33), which does contain the prescribed terms, but not the T&C referred to. I take it that they are still in default as long as they do not supply me with these and this is what you mean?

 

Technically, yes - but I don't think the Court will care (from what I've seen from other cases/threads) about them being in default over supply of the T&C's. This isn't right, IMHO, as the Act clearly states they must supply them.

[mrmarmite]

bom bom,

[Slartibartfast]

It seems that I'm on a hiding to nothing no matter what then. All I'm doing is buying a little time,which is what I needed to begin with but my health is not going to permit the solution I wanted. There's always the BR exit though.

 

Not going to give up just yet though.

[mrmarmite]

no don't go down that road, it's to early ! there is a solution to everything, just gotta find it,

 

chin up

[Slartibartfast]

100% Cheers Mr M.

Its difficult seeing the positive side of things sometimes but when you aint got alternatives your kinda stuck with lookin at the upside no matter how far back you have to crane the neck:)

 

It makes you stronger they say.

[mrmarmite]

oh yes

 

after dealing with fair amount of DCA's now with all the calls and threat letters, b4 i found CAG i just ripped threat letters up and hid in the corner hoping they go away, I got fed up found cag and every day i get home from work now the 1st thing i say is "any post" rip it open and laugh, lol, then i say ello to me mrs.

 

if not for CAG i be buggered, i spent many late nights going though cag forums, getting lots of headaches,

i thought sod it, send a DCA a letter and it went quiet, oooooooooooooooooo i went, the rest is history...........................

 

like you are doing now, like i have done, from this site you learning experience/problems others have had so they help you to over come it, just like me, now further down the line you help other (new) CAG'ers

 

it like family, you pass your knowledge on to siblings, they they pass it on to theirs, each time more info gets added.....................................

 

lol gettin soppy, i'll leave it at that apart from to say thankyou to the people who sent me in the right direction nearly 1 year ago

[The GodMother]

Mr M

 

I know how you feel

 

I was having a hard time untill l found CAG and now the post is basically junk mail.

 

I took to making the postie do some work buy ordering everything for christmas on line and that got boring after l had everything.

 

Chrissi

[Slartibartfast]

Car, I'm placing my question from the other thread in context where I hope it makes more sense.

I have recieved a report from a CRA which shows a default registered by MBNA. The date is more than two weeks before the date on the default notice I received subsequently. The default notice was also issued while the account was in dispute and has a different acc. number on it. If this default was therefore unlawful as wll as inaccurate what will happen? Can enforcement on the CCA/Application Form go ahead despite the inaccuracies of the default. or will the default have to be adjusted and served again (but it cannot be serverd twice?)?

If I appear slow, thats an accurate perception.

[car2403]

I can't see how they can Default the same agreement twice because of the wording of s.87/s.88. It's arguable either way, but the agreement itself can only be Terminated once, so should only be "Defaultable" (not a real word!) once.

 

If the Default Notice they rely on to prove they Defaulted you is inaccurate, (wrong dates of issue, insufficient time to remedy the breach) or the Default balance is unlawful, (containing collection charges) the entire Default Notice is rendered ineffective.

 

As the argument goes above, an ineffective Default Notice stops them further Defaulting the account again as it's an unlawful rescission of contract;

 

Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Defendant a counter claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

This wouldn't stop them Defaulting you again, as the Court isn't involved, but would allow you to challenge the original Default and any subsequent ones for the same reasons.

 

The only way I can see where they would be allowed to Default you again and continue to enforce via a Court is where the debtor agrees to such enforcement as the CCA provides a defence to it but the onus is on the debtor to use it. I can't see why anyone (unless they don't use CAG or don't understand their rights) would allow that to happen, but I bet it does.

 

Don't worry - this is a complicated subject matter. I don't like all the technicalities and uncertain (especially as we're relying on untrained Judges!) outcomes, but you don't get if you don't ask!

[Slartibartfast]

Thank you for that car, its a weighty subject indded.

The default notice I recieved seemed pretty scary stuff until I started to look at it in more detail. They put a different Acc. number on it and it was dated 13th Dec, received on the 17th. It gave until 7th January but the CRA default was placed on the 29th November.

[car2403]

Look at this, then rip it apart! (Metaphorically, I mean, of course, as it's evidence for your case!)

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/103785-default-notices-what-they.html

[Slartibartfast]

The original info for this thread seems to have been removed from the OFT site:

"The OFT has produced guidance on existing requirements, as part of the booklet on 'Matters arising during the lifetime of an agreement', but this has been withdrawn in the light of the changes."

CB's link does not work for me either.

Loads of other threads to peruse though, another horizon of mysteries

[car2403]

I wonder if anyone on CAG has saved a copy? (I haven't)

[Slartibartfast]

A default notice came from Lloyds saying 'we will refer your accounts to our solicitors'. Are they that fast to go litigant and is this time up or will it go to Collectors first?

 

The CCA was complete, eventually, and it does appear I'm banged to rights. An offer of a small amount was made to me on condition I make F&F but Lloyds don't want to know. Anyway, it would be double trouble taking on more debt as its already impossible

[car2403]

A Default Notice, eh? Does it include collections charges, as that will invalidate the notice and is an unlawful recission of contract that prevents the Court enforcing the entire debt and gives you a counterclaim of £1000 in damges for unlawful Default and termination?

[Slartibartfast]

No collection charges on the notice which looks in order. I did get one late payment charge but that was on my current account.

[Slartibartfast]

It has been very quiet but I guess things must be bubbling.

Early January I sent template SAR and £10 PO to MBNA.

Two weeks later a letter a response "Under section 7 of the Data Protection Act 1998 as per your request for statement information...blah...there is no charge" and one sheet of paper with a few charges on it. Nothing else. This came signed by some 'Assistant Vice President' (Wow!).

I wrote back with copies of the original SAR letter and the response I had received pointing that this was unacceptable and that the time limit would soon be up.

Today I receieved the PO back with a compliments slip. This was posted yesterday.

What on earth are they doing?

Surely they still have to comply with the SAR regrdless of what they do with the fee? The original letter could not have been misconstrued, it was the explicit template letter.

Meanwhile I have been trying to get the original T&Cs and had written a letter of official complaint. Also today also got an acknowledgment of this along with a leaflet. It explains that they will acknowledge a complaint in 5 working days - took them 12 wd to send this - and there would be a minumum of 28 days to investigate.

 

Either they are being willfully obstructive or the administrative machine needs a little oiling.

The DCA (DCRI) have sent idiotic text messages "Breaking News, get 50% off, offer ends soon".

[Slartibartfast]

I sent the SAR letter and £10 to MBNA and time was up yesterday.

They sent me one sheet of paper with a few charges on it and nothing else. I wrote back saying this was unacceptable ( probably obstructive! ) but they sent my £10 PO back with a compliments slip.

 

Meanwhile I complained that the CCA request had still not been fulfilled and I wanted a copy of the original T&Cs. A letter arrived in response to this saying they were investigating my complaint and would aim to reply in full within 28 days.

 

Where do I stand as regards the SAR, should I send another £10 ?

Or should wait until they respond to the complaint(should be by 5th April)?

[mrmarmite]

send it back and remind them of their obligations. when i S.A.R barclaycard i got excuse after excuse so i gave them little while longer they took em to court and got £30 costs out of it. and then suddenly the statements arrived, i kept nagging and eventually i got everything they had on me, the amusing thing was agreement should be there aswell and to this day (last jan i requested sar) i still not had an agreement so few days ago I wrote a nice little letter to their legal executive, shall see what happens next.

 

if you already wrote back then yes make complaints, I'm starting to go out of my way now (getting fed up) that companies ONLY go by their OWN rules and NOT the LAW so I'm forcing them to comply by legal action.

[Slartibartfast]

Well, wad'ya know, got a bundle in the post today even though they sent the PO for £10 back. Can't really make much sense of it except that there are very few charges. No original T&Cs either.

 

Interesting notes on telephone calls etc. Not wholly accurate and they seem to think I have a mortgage too, that was a decade ago at least.

 

Don't know where to go from here. Can't work, no income blah,blah. Are they likely to take this to court soon?

[Slartibartfast]

Does 'charged off' mean that an account has been sold?

[davey77]

Seems like you have similar problems to me Slartibartfast!

 

Davey (Arthur Dent)!