Slartibartfast -v- MBNA (Now with Cabot)

[Slartibartfast]

Looks like we've both got surprise and thrills to come then

[car2403]

yes and no, Legal Admisibillity.

If they only provide a "Copy" in Court not the original they must have a certificate signed by the credit controller stating when the original document was destroyed. if no cert is provided THEN the copy can ONLY be used as secondary evidence.

 

Not sure what you mean by "certificate", Mr MM?

 

A witness statement would suffice, IMHO.

[Slartibartfast]

Thanks for moving this thread steven4064

 

MBNA have responded to my complaints about DCRI continuing to send text messages and letters with a waffle about needing to telephone if no other means are possible blah blah. They claim to have removed the mobile number but DCRI still text. Don't their 'Investigation Officers' have anything more important investigate?

 

No word yet from the FOS apart from a ref number.

[davey77]

Thanks for moving this thread steven4064

 

MBNA have responded to my complaints about DCRI continuing to send text messages and letters with a waffle about needing to telephone if no other means are possible blah blah. They claim to have removed the mobile number but DCRI still text. Don't their 'Investigation Officers' have anything more important investigate?

 

No word yet from the FOS apart from a ref number.

 

Hey Slarti! Don't bank on the FOS being much help. They are an after-thought really as far as i am concerned! Email BBC watchdog instead and tell DCRI and MBNA that you have done so (If you haven't already lol).

[Slartibartfast]

Hey Slarti! Don't bank on the FOS being much help. They are an after-thought really as far as i am concerned! Email BBC watchdog instead and tell DCRI and MBNA that you have done so (If you haven't already lol).

 

I had gathered from reading around here that I should not place too much in the way of hope for anything from FOS or TS or the PM for that matter:)

 

Are the BBC's watchdog people interested in MBNA/DCRI ? Not something I watch - the TV conked out!

[davey77]

The FOS chickened out big time on me especially re MINT. They said my 'agreement' was properly executed, even without an official allocation, even though under the regs it's obvious it isn't. I'll have them.. one day. Should i do an N1 on MINT and win then i will be writing a complaint letter to the FOS! (I'll get an apology out of them for that one day, you'll se!)grrrrr lol

 

Anyways, i haven't heard too much on Watchdog lately about those particular companies but they are always interested in people's debt problems I'd say. DEBT is big news and the little man fighting back against the despotic gangmaster (creditor) is always going to be of interest to the media as a whole. More so in this era of the credit-crunch.

[The GodMother]

well i think we need to make a mass complaint to watchdog. I have said this b4 BTW

[Slartibartfast]

Telephone harrasment letters galore to both MBNA and DCRI, an assurance from MBNA in writing that they have removed my mobile number (but refusing to remove the land line number) from their records and a complaint with the FOS about the lack of compliance and *still* getting text messages from the DCRI VIP investigating officers offering 50% reduction.

[Slartibartfast]

Well, it took the FOS a year to decide that there was no case for MBNA to answer. I rejected their decision and wrote to MBNA to tell them this and ask for a return of the late fees they charged on the life of the account. I also asked for a return of the fees that Cabot had placed on the account which had neen sold to them early this year while the FOS were investigating.

 

The FOS requested original T & C several times but MBNA kept sending copies related to different years and eventually gave up saying that MBNA could not supply them because they simply did not have them, tough but unimportant. They also said that I had obviously seen the originals because they would have been sent at the inception of the agreement.

The FOS appear to be a waste of time.

 

MBNA now say that the penalty charges were 'default sum fees' in accordance with the T & C which remain valid and will not be refunded. Since they have never supplied the relevant T & C how can I be sure? Also the prescribed terms on the back of the application

form are illegiible in the part where there's a table of charges.

 

Perhaps I should now send an LBA to seek refund of the penalty fees? Only a small amount but it does mean that the default notice is incorrect and this was also sent while I was disputing their CCA response.

 

I notice that Cabot have stepped up Court proceedings. Perhaps I should look forward to them having a go.

[mrmarmite]

Tell cabot firmly that account in legal dispute, they are to cease ALL communication, failing to do so WILL lead to court action for harassment.

 

Basicly threaten them back and call their bluff. If there aint a proper agreement they can't do nowt.

[Slartibartfast]

Hi MrM, Good to see you're still active.

I did write to Cabot pointing out that there was a dispute and havn't heard from them since February. My communications of late have been with the FOS and MBNA.

 

Unfortunatley the application form looks enforceable, if they can produce the original and prove a link to the prescribed terms they produced for the reverse side. As it stands though, MBNA have still not provided the T&Cs relevant and tried to fob off the FOS with a number of different sets all of which I had to point out were from different years. They now claim that I will recieve no refunds because of the T&Cs. The FOS just gave up despite my protests and I'm writing back to MBNA to make further complaints which I'll have to take back to the FOS if they don't comply.

 

In the early days MBNA refused to take token payments of £5 saying that

they would have to make a charge of £3 for this. This they now deny.

This has taken 2 years so far and they have not given any indication of reasonable behaviour.

 

If MBNA or Cabot want to go to court that'll be fine I have an excellent record of everything thanks to early reading here. They won't get any blood out of this stone and I have a bit more fight these days.

[mrmarmite]

ello, yes me still active (backside included) just been busy doing other things.

All of us that have had dealings with FOS already know it's a total waste of time talking to them about application forms/agreements.

 

It is us that have to boot FOS and remind them that us taxpayers are the people that pay their wages and stop being 1 sided (banks side).

[Slartibartfast]

I've perhaps made a slightly skewed demand for repayment of late payment fees. Reading through the FAQ it would appear that there has been a figure of £12 set as a cap for late fees etc ATM. Are people still claiming whole amounts of these fees or just the difference between £12 and the charge levied, plus interest of course?

 

Looking at the spreadsheet available here it calculates the interest from the date of the charge until the present? I need to calculate from the date of charge until the account was terminated.

 

What happens to an account that was defaulted, terminated and sold to a third party where there is a claim for a refund which it seems will be on hold by the courts for some time? MBNA sold the account, and I'm just guessing, but it looks from their previous form that they will not play ball and may refuse to cough up. Its only a small amount but they have refused to allow me to see (via prescribed terms refering to T&Cs they won't supply) what I'm entitled to.

 

Rant mode.. I still can't believe (just waking up I think) that they hiked my interest rate to nearly 35%. That has ro be worth another FOS complaint

[mrmarmite]

you dispute the whole charge.

interest calculator, that keeps going till the day you take them to court.

 

sold, you MUST dispute it, it is mbna that put charges on not the dca so it's nothing to do with them

 

as to interest rate hike, my old man had this with lloyds card i think, As a cagger and i am acting on his behalf I have told him to refuse to pay it, they now hike interest up on the fact they cant cant charge you anymore than £12,

 

If it were me I would add the difference between old interest rate and hiked up ones to interest calculator. they cant penalise you by charges so they doing by adding more interest.

 

Yet again forcing more people into debt, It's not us getting into debt it the banks forcing us by slapping high interest and charges on the account. It just aint fair one way or another we WILL get screwed, this is where FOS should stop these theives coz thats wat it is.

[Slartibartfast]

Aha, OK, a bit more for me to think about there MrM, thanks.

Not being good with accounts, which is, sadly, probably a small part a part of being here in the first place I'm going to have to look for a little help in assesing the amounts I should dispute in terms of excessive interest.

Is there precedence for successful challenge of these interest hikes?

I'm not exactly panicing any more thanks to CAG and its regulars, however this is a bit like peering through the twighlight.

[mrmarmite]

not as far as I am aware (happy to be corrected) But I would be more than willing to "test the waters"

 

It's case of they screwing you over a silly "little" mistake and is clearly driving you into deeper debt, I can't see the Court in favor of the creditor on that statement alone.

 

(After) I found CAG (when I was a newbie) people here helped as best as they could (thank you) after many many hours trawaling the net for legal info I decided to take the plunge and take my 1st court action against a bank.

 

Now I take every oppertunity to take them to court, My last 2 cases were against Barclays (you know 1 of the worlds most largest banks) 1st was non compliance under the DPA 2nd was harassment (telephone calls mainly) they started off the bull run saying that i not comply with the CPR and want full POC I complied, they claimed i changed my POC I responded via the court that I was only complying with thier request, It went silent, tic toc, tic toc and nothing, They got a CCJ by default. ooooo I thought great, the end, WRONG they coughed up what ever Court fee's to have CCJ set aside because they CLAIM they never received my full POC (bearing in mind that I sent it to barclays and the Courts sent a copy to them) my response was that it can only be a fault of barclays internal mail department. 1 week later I got a cheque through me door from barclays (this was 1 day before the hearing to have the CCJ set aside) They gave up and the CCJ stuck.

 

They KNEW full well there was NO way they can win, After I joined CAG I was very nervous about the legal stuff, I spent hours upon hours on the net checking out the legals, I done EVERTHING by the book, I complied with EVERTHING that was requested either by the court or barclay's.

 

My point, YOU play by the book, the won't, they will use intimidation to put you off wether via the courts or not. As long as you are factually correct they can't touch you and they know it but they still try it on. I went through this with my 1st court action (against Abbey)

 

What you think is "They have several thousand people in that company, I am only 1 little person" my reply to that (now) is "yeah and?"

 

Do thing by the book and STICK TO IT, don't falter just keep going and that "1 little person" WILL prevail.

I can now very happily say that I have been there, seen it, got the T-shirt. Since that day I promise you will never look back (apart from when u think "why didnt I do this sooner")

Caggers helped me, I am now here to help others with my experince and to share the legal knowledge I have learned on my travels. All you have to remember is 3 words "By the book"

 

 

I'll go through this thread from scratch when i get 5 over next few days and give you info to start building a case (including references from what ever law/act) so you can check out for yourself.

[mrmarmite]

lol, u better be worth it, took me over half an hour to write me last post

[Slartibartfast]

MrM you are a brick!

 

I think I retype that to make sure -- brick!

OK.

 

Firstly thank you for your time.

 

Yes, I recognise there is long hard road but I don't have any alternative ATM. I had a bit of an upheaval some timer ago and little respite since but it has been my resolve fight this giant bully and to pass on whatever I do learn to help the next wave, as it were.

As for reviewing this thread, well I'm apreciative but I would not want you to divide your energies, I'm thankful for the replies you've given but I can't claim to be worth anything . Given more problems and any impasse I have faith that there will be an answer, don't make ny case a priority, I still have a brain(I think so nayhow). Bless you me dearyO!

CAG Rules

Edited October 13, 2009 by Slartibartfast

[mrmarmite]

LOL, brick sounds good as i hit me head against 1 often enough. I WANT to re-read thread so I can give as much ammo as I can dig up to help on your quest

[captain2]

Hi I am in business too and like you have waves of self defeat then rally. As you say in 6 -12 months time as in my business which is now getting back on track you may be able to service the debt either by a DMP or challenge none agreements or the interest rate. If you search my other posts I have one relating to the Ombudsman whose office inform me that they are now, only in the past 2 months, including handling unfair interest too. When you've already sent a CCA S.78 request but got no reply or the reply has ground to a halt then look at this letter below. I have constructed it from pasting extracts from others tailoring it and adding my own original sections and thoughts.

Please read it and I hope it is of some use. I would welcome comments too from anyone else.

 

Dear Sirs - insert company details agreement number etc.

 

In view of the lack of ability to provide a copy of my credit agreement I must advise you that I am now writing to the FOS as you suggested in your final response letter of that date( if you every get to a final response letter or 8 weeks when they've not replied and you have proof of posting.).

 

I will however inform you of this –

 

Sections 77 and 78 of the CCA 1974 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement.

 

To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

Please read the above information and consider the position.

 

In providing me a copy of what I have signed I cannot agree that any debt exists namely due to the none specification of interest rate and in my opinion I have already paid you considerably more than the original margin advertised and as the rate is not stated in the agreement it has prevented me from finding this out and thus assessing the situation.

 

 

Regarding the interest charged - the following is an extract from the Office of Fair Trading web site -

 

One of the main themes of the Consumer Credit Act 1974 is that there should be ‘truth in lending’, particularly in advertisements for credit and written agreements or other documentation. The Total Charge for Credit Regulations, made under section 20 of the Act, define a total charge for credit (TCC) which includes interest and other charges which affect the real cost of borrowing – even if they are not payable under the credit agreement itself. Simply knowing the amount of the credit charges is not usually enough for a borrower to compare one credit deal with another. The time at which the credit and charges have to be repaid affects the rate of the charges being made and how valuable or costly the deal is to the borrower. Lenders use a number of different ways of charging interest and these can treat the time of payment in different ways. So, in addition to leaving out other charges, lenders’ interest rates will not generally provide a useful comparison. The Total Charge for Credit Regulations also set down how to calculate an annual percentage rate of charge (APR), which expresses the TCC as a standard measure borrowers can use to compare the credit charges under one deal with another, whatever rate or method of charging is used. It is important to understand that APR is not the only thing the borrower needs to consider when choosing credit. For example, the deal with a lower APR might require monthly payments the borrower cannot afford, or run for much longer than the borrower wants or than the goods bought with the credit are likely to last, or the goods might be cheaper from another store, making that a better deal even though the credit charges are higher. However, APR is the only standard measure which allows the borrower to compare the charges being made for the credit provided. In addition to helping borrowers shop around for credit, the TCC and APR have other uses under the Act. The TCC is used in the calculation of rebates on early settlement (details of these provisions are given in the Office’s booklet Matters arising during the lifetime of an agreement) and to determine the charges which a credit broker cannot make, or must return, if he does not obtain a loan for a Office of……etc etc’

 

Thus section 20 of the CCA 1974 defines TCC and this includes APR as a stated requirement and one of the prescribed terms of the Act where a court has no power to enforce if not stated correctly (in pre April 07 agreements).

 

In the case of your alleged ‘agreement’ /reply card the interest or APR and TCC is not stated and the payment details are omitted. The amount of credit and credit limit are also omitted. Thus the single sided ‘copy’ ‘agreement’ cannot be considered adequate under the Act as the prescribed terms are missing.

 

That there is no properly executed agreement contradicts your claim that you are reporting factual information regarding none payment and defaults as there is no proper basis for so doing furthermore under the banking code defaults are not allowed while an account is in dispute. Nor is iit allowed under the Data Protection Act and is something I will write to the Commissioner of Information concerning wrongful dissemination of such information.

 

Under the Banking Code which applies to Credit Card companies there is a fairness commitment and to provide clear information on products, how they work, terms and commitments – detailed information before you commit to a contract – The code specifically states - 4.3 ‘we will give you a full explanation of how we work out interest.’ The Banking Code also reiterates your commitment Under the Data Protection Act of my right to see the records you hold about me which includes copy signed agreements. Furthermore under the banking code you may only contact credit reference agencies if the account is not in dispute. Section 13.6.

 

I will also further add -

 

'I am repeatedly having to say the same things to your representatives who call my telephone number continually until I stopped taking your calls but still make dozens of calls each week. Please note that under the Data Protection Act I am formally demanding that you remove my telephone number from your records. If you fail to do so I shall take this matter to the relevant authorities for their investigation. Due to the seriousness of this matter and any legal action, which may arise, I will only correspond in writing and will not accept phone calls or personal visits. Should you either visit or phone I shall consider this as harassment and either take legal action and/or make complaints to the Office of Fair Trading under section 40 of the Administration of Justice Act 1970. Section 40 of the Act provides that a person commits an offence if, with the object of coercing another person to pay money from the other as a debt due under contract, he or she:

 

• harasses the other with demands for payment which by their frequency, or the manner or the occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation.'

 

 

Please take particular note of the above as I find your company tactics unreasonable harassment.

 

I am advised by the FOS that the complaint may take 6 – 9 months to deal with fully. During this time I must advise you that you must cease all calls to me and that in any event all dealings MUST be in writing. Should you not take notice of this you will be in breach of the Banking Code your consumer Credit Licence and S.40 of the Administration of Justice Act.

 

Should you not cease this forthwith I shall complain to the Office of Banking Code Commissioners and the Trading Standards Department.

 

When the ombudsman has finished his investigation which YOU have recommended then no doubt the matter will become clearer and any matters outstanding can be dealt with at that time.

 

Yours faithfully,

 

 

etc

 

This letter in my opinion would still stand even after the recent ruling by Mr.Justice Flaux in McGuffick and RBS. As the Banking Code is probably your greatest friend here. Maybe not law but certainly a code banks have to adhere to. If a creditor or DCA issue proceedings in the meantime the FOS have told me that they would contact the court to ask for a stay of proceedings while the FOS investigates. The you still have that route to follow. Plus further delays could be caused by internal appeal of the FOS decision.

 

Hope to hear what you think and how you get on.

[Slartibartfast]

Well, this has been a lumbering and inconclusive affair.

Cabot wrote this year saying that the balance was irresolvable and the account irrecoverable since they could not get requested information from MBNA. A few weeks later they started again with a new welcome letter. They have sent a 'copy' of the Notice of asssignment as forwarded by MBNA - no such notice was ever sent by MBNA to me - nothing else. They want contact to discuss within 14 days. Ho hum.

Meanwhile they have added circa five and a half thoudand to the figure claimed.

I guess its onward to court now, which may be my best option - interesting.