Help48xxx v. MBNA

[Help48xxx]

Hi Magda etc,

 

I CCA'd MBNA and have been sent a copy of the signed section of the CCA but it is on the top half of both sides of an A4 sheet. The total printed area of the A4 sheet is 4" each side. It bears my signature yes, but some of the print is obscured by heavy black lines across the top and bottom.

 

I also noticed that the T&C's are on seperate pages which look totally different and are clear to read and like in your case Magda, the penalty charges are £12.00. In short, I believed the T&C's to be the most recent version and not those effective at the time I took the card out, (2003). Then, I get another copy of the T&C's from another party, (Virgin), who state in their letter:

 

"As per your request, please find enclosed a copy of your current terms and conditions".

 

They are identical to the ones I got from MBNA but Virgin didn't enclose the signed document.

 

I then get a letter today from a company called Optima Legal who say they are acting on behalf of MBNA and threaten all sorts of things.

 

To be honest I don't know what to do next as I seem to be dealing with 3 players now. I do wonder though if I should, like you Magda, question the legitimacy of the T&C's received. It all just looks a bit suspicious to me.

 

xx

[MAGDA]

Hi, Help48, If I was you I would write to them and say that they haven't fulfilled your request. I was given the following letter by car2403, so maybe it might be of help to you in this particular case. I don't know who Optima Legal are, haven't heard of them before, but if they are a DCA now handling the account, then I would contact them, but if not, then MBNA. Don't worry about their threats, as they all do that to try to get you to back down and continue to make payments to them. The letter is as follows, hope it helps, magda

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[Help48xxx]

Fabulous Magda...thank you so much. I will get that sent off tomorrow and see what happens.

 

This is all such a nightmare. I can't seem to get a proper response from the creditor, (if indeed I get any response at all), then they set solicitors or DCA's on me. Although I did see one DCA off with a CCA request thanks to this forum.

 

Many thanks again

 

xx

[MAGDA]

Hi Help48, I know, they certainly are a nightmare. The thing is to try not to worry too much about their threats, and I know that isn't always easy. They are experts in trying to frighten people. Good luck with the letter - let's hope it does the trick, Magda

[Help48xxx]

Oh,

 

just one thing...the first paragraph says that they sent an application form. They didn't. They sent me a section of the signed CCA. Any ideas on how I adapt the letter to reflect that?

 

Many thanks

xx

[Help48xxx]

Oh, hang on. I just read the accompanying letter again and it says:

" I can confirm the following are enclosed:

Copy of the original Credit Card Application/agreement

Terms & Conditions

Recent statement of account"

 

I got that letter after I CCA'd RMA (DCA) who were hassling me. They have now disappeared and MBNA took over the CCA request.

 

Something fishy going on per chance?

 

XX

Edited June 26, 2008 by Help48xxx
DCA name error

[davefirewalker]

Oh, hang on. I just read the accompanying letter again and it says:

" I can confirm the following are enclosed:

Copy of the original Credit Card Application/agreement

Terms & Conditions

Recent statement of account"

 

I got that letter after I CCA'd Moorcroft (DCA) who were hassling me. They have now disappeared and MBNA took over the CCA request.

 

Something fishy going on per chance?

 

XX

 

 

nope.........thats typical DCA behaviour, they're really upfront and brave until you challenge them

 

Dave

[Help48xxx]

Hi Dave,

 

I've been thinking about this most of the night...(darned insomnia)...

I think they only sent me the bottom section of the original because it was probably the application form and not the actual agreement. The T&C's are obviously the current ones, so I will need to send the letter off and state,(as above), that I believe they have sent me the application form. Then I'll have to sit back and wait to see if they send me the entire document.

I wrongly said it was Moorcroft that backed off. It was actually RMA. Moorcroft are hassling me for something else! Deep joy!

 

Thanks for your help guys.

 

xx

[Jeff2000]

Hello,

 

 

Just thought I'd let you know that Optima Legal Services Ltd, if that's who you mean, are in fact solicitors. They sometimes represent Barclays as they are doing in mine and also Heather58's battle with Barclaycard.

 

Just be aware that they will start proceedings very soon!!!

 

 

Best wishes, Jeff.

Edited June 13, 2008 by Jeff2000
Spelling.

[Help48xxx]

Yep, that's them!

 

They wrote to me on 6th June, after my letter to MBNA had been received & signed for on 6th June...and I didn't receive their letter until yesterday 12/6/08.

 

I don't know what to do now as I can't get to the Post Office to send the letter about the CCA etc or anything to stop the commencement of legal proceedings.

 

Optima said

"our client may have no alternative other than to commence legal proceedngs.

 

If you contact our client now they may be prepared to come to an agreement that will freeze interest and reduce either the overall debt or the monthly repayments. It is likely that our client will require you to complete the Income Asset & Expenditure form....."

 

Well, the letter I sent on 3rd June to MBNA included my financial statement and an offer of token payments.

 

So should I panic?

 

Oh lord....looks like another night of insomnia!

 

xx

[citizenB]

Advice given on here quite frequently is NOT to phone. You need everything in writing to protect yourself.

Edited June 13, 2008 by citizenB
possibly bad advice.

[MAGDA]

Yep, that's them!

 

They wrote to me on 6th June, after my letter to MBNA had been received & signed for on 6th June...and I didn't receive their letter until yesterday 12/6/08.

 

I don't know what to do now as I can't get to the Post Office to send the letter about the CCA etc or anything to stop the commencement of legal proceedings.

 

Optima said

"our client may have no alternative other than to commence legal proceedngs.

 

If you contact our client now they may be prepared to come to an agreement that will freeze interest and reduce either the overall debt or the monthly repayments. It is likely that our client will require you to complete the Income Asset & Expenditure form....."

 

Well, the letter I sent on 3rd June to MBNA included my financial statement and an offer of token payments.

 

So should I panic?

 

Oh lord....looks like another night of insomnia!

 

xx

 

If they don't have an enforceable CCA (it might be a good idea to post a copy of it on here so that someone can check it over for you) then although they still may take you to court (some of them still do) you should have a complete defence as the 'cca' (application) they sent you does not contain any of the prescribed terms and they have sent you a copy of their current terms and conditions only. I think with situations like this you either have to stick to your guns basically and be prepared for the consequences, i.e., they may take you to court, or, try to negotiate some sort of payment arrangement with them (even though you know they have not complied with your CCA request). Then again, some of them will still take you to court, whether you make payments or not. Some of the creditors/DCA's do acknowledge that they cannot provide an enforceable CCA and stop pursuing you for the debt (i've had quite a few like this) and others still try to pressurise you into paying (which of course you may decide to do) despite knowing that they cannot comply fully with your request. So really, the only person who can decide what to do it you. But if you post up a copy of what they have sent you so far, I'm sure you will get some opinions on whether or not it's enforceable.

 

Magda

[Help48xxx]

I would do.... so but sadly, the one thing I didn't get on my credit card was a scanner

 

I won't be 'phoning anyone. It's in writing all the way!

 

xx

[davefirewalker]

I would do.... so but sadly, the one thing I didn't get on my credit card was a scanner

 

I won't be 'phoning anyone. It's in writing all the way!

 

xx

 

use a camera or a phone cam for the docs....not as good but may be worth it

 

Dave

[banker_rhymes_with]

Hello Help48xxx!

 

I would do.... so but sadly, the one thing I didn't get on my credit card was a scanner

 

Only a suggestion, but if you have, say, a Digital Camera or Mobile Phone with a Built-In Camera, you could take an Image and post that.

 

Use any Windows Paint type of Application to Edit out Private Details, or just cover them with bits of Paper before taking the Image in the first place (should've said that first!).

 

These are just ways to get around the lack of a Scanner.

 

BTW, was the Letter from Optoma a real Letter, i.e. was it Signed by a Human, did it have an Address and Contact details? Seen a few of them that are just Computer Signatures and no real Contact details, so could be just a Threatogram.

 

Hope it helps anyway.

 

Cheers,

BRW

[Help48xxx]

I got a mobile 'phone that takes pictures, (courtesy of my lovely ex who said he worried about me not having one), but am still trying to figure it out! It's got a camera on it, so it's all very new to me!

 

The letter from Optima appears to be a computer generated one. The signature has a grey area surrounding it. It's deffo computer generated. Also, there are no contact details other than Phil Robinson, Solicitor, who got his computer to sign for him! So is this just a threatogram do you think?

 

xx

[banker_rhymes_with]

Hello Help48xx!

 

(Sorry Davefirewalker, I see you Posted ahead of me to say the same thing, I missed that).

 

I got a mobile 'phone that takes pictures, (courtesy of my lovely ex who said he worried about me not having one), but am still trying to figure it out! It's got a camera on it, so it's all very new to me!

 

Usually, if it's got a Camera, it should come with some form of Cable, usually USB, to link it to a PC or Mac to be able to Download the Images from Camera to PC/Mac. There may be a CD-ROM too in the Box that contains basic Mobile Phone Camera Software to let the Computer "Speak" to the Camera to see/download the Images.

 

If you've lost the Box, you may also be able to Download the Camera Software from the Web, so lots of ways available to get it to work.

 

Your Computer may also just recognise the Camera once the Cable is plugged in, so it should be reasonably easy. Just ask here if you get started and can't quite get it all to work.

 

The letter from Optima appears to be a computer generated one. The signature has a grey area surrounding it. It's deffo computer generated. Also, there are no contact details other than Phil Robinson, Solicitor, who got his computer to sign for him! So is this just a threatogram do you think?

 

Sorry, Optima, no idea where I got Optoma from, fat fingers I think as "i" and "o" are suspiciously close on the Keyboard!

 

Yes, it sounds like a basic Threat, as they have not bothered to use a proper Letterhead with Contact Details, which could potentially be a little suspect as from their Web Site, they claim to be a Limited Company (Optima Legal Services Ltd).

 

I would think Companies House may have some words to say to them about lack of Contact Details on a Limited Company's Letter Head. Anyone know the actual Law on this, but I do know it's neither big nor clever of them to do this, put it that way.

 

After all, how do you respond if there's no Contact Details? How serious does that make them look if they send you a Threat and cannot be bothered to:

 

(a) Sign It themselves.

 

(b) Provide basic Contact Details so you can respond.

 

Looks like a basic Harassment Theat in that case, but others may have seen these used ahead of Court Action.

 

I hope this helps.

 

Cheers,

BRW

[foolishgirl]

Just for info:

 

I always understood that all limited companies' paper, compliment slips etc must display their name outside every office or place of business. The company's name must also be displayed on all letterheads & other official publications, cheques etc.

 

The company must also show its registered office and registered number together with its name and address.

 

It's optional to include the names of directors but if a company chooses to have directors names on its letterhead them it must show all directors and not just a select few.

 

The legal requirements are in The Companies Act 1985 (amended 1989)

 

Sounds as though you have a case here for reporting Optima to Companies House for failure to comply - think it could be a criminal offence but not too sure of company law in relation to this issue.

 

Not that this helps you out of your immediate problem but may give you extra ammo if you have to go to put stuff before a judge.

[Chalkitup]

Hello foolishgirl,

 

They also have to show where the company is incorporated.

 

I recently received the following ....

 

Guidelines for Company Stationery

Your company's letter heading must show:

Company name, exactly as registered at Companies House

Company number

Where the company is incorporated (England & Wales or Scotland)

The registered office address

If the letter head shows the names of the directors, it must mention all of them.

 

Onwards and Upwards

 

Chalkitup

[Help48xxx]

Wow!!

 

you are amazing!

 

all the letter shows is this...which is right at the bottom, (underneath the threats-obviously)

 

Optima Legal is a trading name of Optima Legal Services Ltd, registered in England and Wales (registered number 0578160) A list of Shareholders and Directors ia open for inspection at its registered office. We use the word 'Partner' to refer to a shareholder or Director of the company, or an employee or consultant with equivalent standing and qualifications. Only persons designated as 'Solicitor', or 'Associate', or 'Partner'' are qualified solicitors. Regulated by the Solicitors Regulation Authority.

 

I'm not happy about this at all as it seems to be forcing me to telephone MBNA rather than deal with them in writing which I specifically requested. If Optima don't want me to know how to contact them, then I doubt they want me to

Edited June 13, 2008 by Help48xxx
typo

[banker_rhymes_with]

Hello Help48xx!

 

I'm not happy about this at all as it seems to be forcing me to telephone MBNA rather than deal with them in writing which I specifically requested. If Optima don't want me to know how to contact them, then I doubt they want me to

 

Yes, my thoughts exactly, and why I think it's just another MBNA Threat.

 

I would not be at all surprised if the Letter was instigated by the MBNA Threats-R-Us System at MBNA Towers in Chester, their Threat Computer sent a Message to Optima's Threat Computer, which then spewed out a Printed Copy Automatically at Optima (along with facsimile Signature), and the Letter was automaticaly stuffed into an Envelope by some Bulk Letter Loading Machine...all without going through the mind of a Human!

 

Just a guess!

 

Cheers,

BRW

[Help48xxx]

Well, maybe I'll I'll sleep a little easier tonight.

 

My plan of action is to deal with Optima, (as above), as even though it's something of a risk, a letter that is threatening, should, in my view, have an address to respond to at the very least.

 

I will also write to MBNA, enclosing copy of threat from Optima, a request for the REAL copy of my CCA, (as above), should they have it...........then see what happens!

 

This is all so draining at times, but the responses from you wonderful people on here, lifts the grey cloud up a little higher...thanks.

 

XX

[foolishgirl]

Perhaps when you write to MBNA you should mention the Administration of Justice Act 1970 S40 that deals with harassment of debtors

 

40 Punishment for unlawful harassment of debtors

 

(1)A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—

(a)harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

(b)falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

©falsely represents himself to be authorised in some official capacity to claim or enforce payment; or

(d)utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

(2)A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

(3)Subsection (1)(a) above does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose—

(a)of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or

(b)of the enforcement of any liability by legal process.

(4)A person guilty of an offence under this section shall be liable on summary conviction to a fine of not more than £100, and on a second or subsequent conviction to a fine of not more than £400.'

 

 

I would have thought 1 (a) & (d) might be applicable in Optima's case. It is also possible that the recently introduced Protection from Unfair Trading Regs. 2008 S7 Misleading Practices could apply but it would depend on when your corresp. from Optima was mailed (the regs. are only effective from 28 May) & the practical impact & use of the Regs. for consumers has still to be properly assessed.

 

Can anyone with legal background input into this please?

 

[Help48xxx]

My son is going to take a picture the paperwork, so I will post it on here later.

 

I received a letter from MBNA, (dated 10th June) today which says...

" Thank you for completing an income and expenditure form.

 

Please would you telephone our office on 0800 783 7198 to discuss the details"

 

Now, whilst I'm happy they acknowledge receipt of my letter and FS, I'm not prepared to discuss this with them over the 'phone. Is this a standard response to a request for token payments? I'm not about to call them, but if they are querying anything, the letters back and forth could be time wasting in my view.

 

Should I just send them a letter to thank them for their response etc, and enclose a token payment anyway?

 

XX

[car2403]

My son is going to take a picture the paperwork, so I will post it on here later.

 

I received a letter from MBNA, (dated 10th June) today which says...

" Thank you for completing an income and expenditure form.

 

Please would you telephone our office on 0800 783 7198 to discuss the details"

 

Now, whilst I'm happy they acknowledge receipt of my letter and FS, I'm not prepared to discuss this with them over the 'phone. Is this a standard response to a request for token payments? I'm not about to call them, but if they are querying anything, the letters back and forth could be time wasting in my view.

 

Should I just send them a letter to thank them for their response etc, and enclose a token payment anyway?

 

XX

 

I think you'll need to start a new thread, as your questions will get lost on here - or worse, go unanswered.

 

Here's how;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html