MBNA - At it again

[Old Cogger]

Mountain Ash? fire

[citizenB]

Certainly I agree that the judgement was ''specific'' but unfortunately the judge did not say so, hence the now routine ''misuse '' of said ''case law'' by DCAs.

I'm seeing numbers of recons now that are being supplied with various caveats such as, ''this is a reconstuction of the agreement that you would have signed when the account was opened'', follwed by ''How ever some data may not be identical to that on the original agreement''.

''The document fulfills our obligation under sections 77/78 of CCA 1974''.

 

This I have notyest seen argued in court, but I think put forefully before a judge it would be found wanting.

 

 

I think the most important part of the Harrison Judgment was more that their attempts to reconstruct were woefully inadequate and they tried to put right what was wrong. This was proved when Harrison found his copy.

 

I agree that each case turns on it's own evidence and whilst Harrison can be very useful. Each person needs to ensure that their situation is identical else they are heading for a fall.. big time.

[BRIGADIER2JCS]

Emm agree to much reliance is made by both debtors and creditors/DCAs on the case law as it stand each individual case warrants the closest scrutiny.

[cashins]

Thanks for everybodies help.

 

Think what I had better do is SAR MBNA to see exactly what they have got up to.

 

David

[BRIGADIER2JCS]

Good Idea.

[spartathisis]

There was a Judgment handed down some years ago (I wish I could find it, I think it would be very useful) where the Judge permitted "reconstruction" because of a fire or flood that had destroyed 100's of agreements.

 

The Bank said they could reconstruct the agreements from data they held at another location. The Judge agreed that in circumstances such as that, it would be unreasonable not to allow the reconstruction. BUT, they had to be "truthful" reconstructions.

 

My argument here is that this was an exceptional case and should not be used by banks/creditors who suddenly decided to routinely destroy data without keeping the relevant data should it be required. Nor should it be used by banks/creditors who suddenly realised that their agreements did not meet the criteria for the Consumer credit Act.

 

HSBC made the mistake back in the 1990s to issue credit cards alongside Debit cards. NO agreements were ever signed. Yet they have tried on several occasions to "reconstruct" them.. hardly truthful IMHO.

 

CB, have you any links to the HSBC stuff threads etcs please? I am in the same situation and currently acc resides with DG Sols.

[BRIGADIER2JCS]

Yes I remember that case, there is also the more recent case law which stated more or less the same, and laid out what a recon must contain to be acceptable, the 'hinge' here is that recons are being issued to 'satisfy' sections 77/78 Requests under CCA 1974 the admissibility of these recons as evidence that a liability subsists will lay with a judge to decide.

 

With default notices these are considered 'generic' and are not usually stored as hard or electronic copies, an entry is placed on the individuals account record stating that a DN was sent on a particular date.

I have a load of data from SARs most explain when a DN has been specifically requested in the SAR that

hard copies do not exists but confirm a DN was sent on a specific date.

Edited May 20, 2013 by BRIGADIER2JCS

[I've got no money]

Cashins, can I just ask when was the DN sent - don't forget that in the old days the period on a DN was 7 and not 14 days

[cashins]

Oct 2008 - which means they had 14 days.

 

David

[cashins]

Finally got the SAR back and waded through it - didn't really tell me anything new.

 

Original question: can I get a default removed if the notice was invalid, (this one did not have 14 days when allowing for postage), it's currently 5 years old.

 

I have seen cases on here where a debt has wound up in court and the judge has allowed a new default to be issued. Could MBNA simply issue a new default?

 

David

[Old Cogger]

yes if it is a true picture of the state of account, sure others will confirm.

[BRIGADIER2JCS]

Finally got the SAR back and waded through it - didn't really tell me anything new.

 

Original question: can I get a default removed if the notice was invalid, (this one did not have 14 days when allowing for postage), it's currently 5 years old.

 

I have seen cases on here where a debt has wound up in court and the judge has allowed a new default to be issued. Could MBNA simply issue a new default?

 

David

 

A defective DN challenged late will NOT result in the default being removed, creditors do not routinely archive DNs a note is made on the debtors file that a DN was sent on a specific date, a new DN can be issued at any time!

 

Yes a judge will in most case allow reissued DNs.

[cashins]

A defective DN challenged late will NOT result in the default being removed, creditors do not routinely archive DNs a note is made on the debtors file that a DN was sent on a specific date, a new DN can be issued at any time!

 

Yes a judge will in most case allow reissued DNs.

 

Waited so long for the SAR that I had forgotten my original train of thought on this.

 

The account was sold some time ago to GlobalArrow. Could MBNA issue another default on an account they no longer own?

 

David

[BRIGADIER2JCS]

No one can change the original default date, or add a new default on any account already defaulted.

[cashins]

So

 

They have issued a default notice that will not stand up in court and it has stood on my credit file for 5 years.

 

What is to stop me bringing action to remove it?

 

David

[dx100uk]

by the time you've argued this through a court case

it will be gone of its own accord.

 

UK mail with a S on it , is classed as 2nd class - 5 days in their system, 4 days in the royal mail = 9 days.

 

dx

[citizenB]

Waited so long for the SAR that I had forgotten my original train of thought on this.

 

The account was sold some time ago to GlobalArrow. Could MBNA issue another default on an account they no longer own?

 

David

 

No they cant and I would think as there is no cause of action with Arrow global they wouldn't be able to either.

 

If you are worried about the start default date on your CR files changing - this can never happen. Despite the status of the Default Notice, the Default Date is not affected.

 

IMHO, you will not get the "default" removed from your files as this WAS applied correctly because you defaulted on payments and will drop off automatically on the 6th anniversary.

 

HTH

[BRIGADIER2JCS]

A compliant DN being issued would be the most likely outcome of court action most judged will allow this.

[citizenB]

If the agreement has been terminated, then it is no longer possible to rectify any defects. The provisions of 78, s87 & s88, are for application to live accounts only.

[cashins]

Thanks all, have to growl and bear it

 

David