Block impending default MBNA CCA agreement

[Harrassed&Hopefull]

Hi,

Help urgently needed please with two MBNA 'agreements', one an online in 2003 and one is a postal application form. Copies of all mbna docs can be see at; (password = station) Login to a private Photobucket.com album

My 2 Letters are below.

 

 

I served the CCA notice and they sent me the copies of the 'agreements' & t & c's, which do not seem to meet the necessary criteria shown in the stickies and library.

Due to this I sent a further notice that they had not complied with the consumer credit act BUT they responded that they would not discuss this any more and continued to add interest and request payments.

 

Now in about 6 months I am going to need a re-mortgage so I definately cant have a default put on my file, it would be a problem.

 

The questions that I ask are

1/ are either of these two agreements legal and enforceable or not and

2/ if not then is there any means of preventing or circumventing the entry of defaults on my credit file (this is an imminent possibility as shown in the document link).

3/ I have been offered a settlement discount, don't have the lump sum needed but more to the point they will mar my credit file with an entry showing two closed accounts and settlement arrangement.

4/ may I legally tell them they are not entitled to pursue this or make entry on my file, and/or advise the Experian's of this, would they take notice?

 

You will see that the postal application doc shows my agreeing to t&c section 11 (sharing my data around) but in the t&c they attached the data sharing is at different section of the terms. Does this have any importance?

 

Last year I paid off 5k in a lump sum which was about my actual borrowing so this is mostly interest and charges left on these 'agreements'.

 

Hope this is clear, tried be brief, links to follow.

 

Big hug thanks to anyone who helps!

 

Harrassed and Hopefull

 

Note 2 copies sent, one for each of two accounts

11th January 2008

 

MBNA Europe Bank Ltd

Stansfield House

Chester Business Park

Chester

CH4 9QQ

 

 

Dear Sirs ACCOUNT NUMBER: 5186xxxxxxxxxxxx

 

I have not received a true copy of any agreement with MBNA and therefore do not acknowledge any debt to your company. I require you to provide the following documentation before I will correspond further on this matter.

 

1) You must supply me with a true copy of the alleged account agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within Sections 77-79 of the consumer credit act 1974 – your obligation also extends to providing a statement of account, showing exactly what charges the balance you allege exists is constituted of. I enclose a £1 postal order in payment of the statutory fee.

 

2) A signed true copy of any deed of assignment of the above referenced account agreement if the above account was taken over from another party.

 

3) You are notified that you are obliged to supply these documents within 12 working days whether you are the original creditor or not under S189 of the CCA 1974.

 

Non-compliance with my request is a criminal offence under the above act and will result in a report being submitted to the relevant statutory authorities.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA, and therefore is a complete defense to any court claim that is issued.

 

I would also request that any future communication be made by letter and not by telephone.

 

Looking forward to hearing from you during before the expiry of the statutory period.

 

 

 

Yours Sincerely

 

2nd letter sent after receipt of mbna documents applications and t & c.

 

 

8th April 2008

MBNA Europe Bank Ltd

Stansfield House

Chester Business Park

Chester

CH4 9QQ

 

Consumer Credit Act Agreements

PLEASE TAKE NOTICE

 

ACCOUNT NUMBERS: 5186xxxxxxxxxxxx/ 5186xxxxxxxxxxxxx

 

On 11/01/2008 I wrote to your company two properly and legally formatted requests for a copies of the above credit agreement as required by section 78 of The Consumer Credit Act 1974, relating to the above accounts. I enclose a copies for your convenience.

 

As of today’s date your company has only provided me with two copies of application forms, and two sets of your company’s terms and conditions.

 

As of the 28th Jan. 2008 your company was in default of section 78 of The Consumer Credit Act 1974, and on the 11th Feb. 2008 your company committed an offence under the said Act. I set out below the relevant section of the Act.

 

(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.

 

I draw your attention to section 78.6.(a) and (b) above. It is my contention that section 6 (a) precludes your company from applying any interest or other charges, or taking any other action that would have been your companies entitlement, had your company complied with my request.

 

As stated earlier you have provided me with two copies of application forms, and two copies of terms and conditions, I have examined these with great care, and they do not contain any provision to which I have agreed that entitles your company to provide information to third parties. I enclose a copy of the application forms I have received, and have highlighted the Data Protection Act section.

Consequently it is my contention that your company does not have my express permission to pass my data to third parties.

 

In conclusion what I require from your company is as follows.

• A signed executed copy of an agreement relating to the above account. or confirmation that your company are unable to provide said agreement.

• That your company upholds the Banking Code section 13.6 which states:-

‘We may give information to the Credit Reference Agencies about personal debts you owe us if:

The Amount Owed is Not in Dispute’.The circumstances leading to this notice constitute a dispute under the code.

• That your company removes all reference to me from my credit file held by all Credit Reference Agencies.

• That your company ceases providing Credit Reference Agencies with any of my personal data.

• That your company cease applying interest and charges to the above account, and remove all said interest and charges made to the accounts.

• That your company forward to me updated statements showing the credits for any fees and interest previously charged.

• That your company ceases all collection activity, both by telephone and letter.

• That your company acknowledges receipt of this correspondence as soon as possible, but within seven days.

If your company does not comply with my requirements, I will take such action as I deem appropriate, including, but not confined to reporting your conduct to the relevant enforcement authorities.

 

 

Yours faithfully

 

Edited September 23, 2008 by Harrassed&Hopefull
added link and 2 copy letters

[Harrassed&Hopefull]

Oh Dear, Have I posted this correctly or did I miss something.

HEELP

[angel_1]

hiya HH

 

welcome i got to your thread from davefirecrakcer's - no you did not post incorrectly, maybe just got missed for someone to get back to you, now im posting this it will bump it up and so others more experienced will come along

 

i ve got my own battles with mbna too, so will take a look at what you have posted on photobucket - i cant get mine to be legible

 

also i note that you stated one of them was an online application thus i believe one of mine is too, as they only sent t and c, and the upto date ones at that for something at least 2 years old so too am confused

 

no you did good to start your own thread and i will ask others who have helped me so far to take a look here for you okay so dont worry

 

i will be back to comment once ive taken a look at your photobucket -

 

ciao for now laters maz

 

*******

 

hiya im back, as ive said im pretty new to all this myself and whilst i can see things similar to what ive been sent, the alarm bell rang when i saw the offer they made, i cannot see MBNA making any offers or have never yet seen them making such offers if they had a 100% cca agreement so to me i could be wrong, but that also depends maybe on what is left owing. Why settle for 60% when they could just take you to court and get a ccj against you and full payment, if you wanted to avoid the ccj by paying it within 28 days of court.

 

So as promised i will get others to come along and help you

 

take care for now lets see if we can help you and give you the correct info - by the way i will subscribe to your thread

 

ciao for now laters maz

Edited September 26, 2008 by maz1964

[citizenB]

Hi harrassed, I linked via the dave firewalker thread as well. I am unable to see your documents because it is asking for a password.. and it wouldnt accept mine..

 

The t&cs from what you have posted above dont seem to be the correct issue for the account opening. Have you considered claiming for the penalty charges?. That might bring the balance down quite a bit. I am not sure how else to advise. Hopefully someone else will pop in.

[The GodMother]

can do anyhing till we can see the docs.

 

GM

[Harrassed&Hopefull]

Thanks GM and others

 

Whew, you are like a breath of air, your comments are most encouraging and give enthusiasm to go on.

I got quit a lift when i read your responses, its like a dry desert out there.

 

Maybe this could be named the consumer oasis group.

 

The password for my photobucket viewing link is station and the docs are in the 'cagme album'

 

Do post if have any viewing problems or if you want to suggest a better mode to view in.

 

Thanks again, catch you later.

 

Harrassed&Hopefull

[citizenB]

Hi HH,

 

Two things I have spotted on your documents.

 

1: The terms and conditions are showing £12.00 as penalty charges. If your accounts are pre 2006 then these wont be the terms and conditions applicable at the time you opened the account.

 

2:. The Abbey mailer form. I rather think that those terms at the bottom of the mailer form would not have been printed there. After all once you fold that form in half.. one part is the address...the bit below the dotted line is, I agree terms and conditions.. but this would advertise to the world what is enclosed which is sensitve personal data. So IMHO I dont think that was what was there originally.

 

Perhaps someone who has actually had one of those forms could confirm.

 

The letters are standard template letters off the threatomatic machine.

 

You might like to read Scarlett Pimpernels opinion of MBNA on my thread. The link will take you directly to SP's post .. it will make you smile.

 

http://www.consumeractiongroup.co.uk/forum/mbna/135999-mbna-cca-enforceable-please-4.html#post1553385

[The GodMother]

well they are riting it off his month cause it is a bad debt.

 

The debt will from my understanding no longer exist so then u wont have to pay anything

 

Any way the T&Cs are incorrect due to there penalty charges

[Harrassed&Hopefull]

Good Morning GM

 

Thanks guys for the opinions expressed and the links were so usefull

 

Yes GM I can see now it does seem highly contestable.

 

And citizenB re the application doc, think I've seen this question elsewhere on the forum so if anyone has info on this application form please come forward!

Specifically meaning Abbey (MBNA managed) around April 2005.

 

Maz, re our online applications, seen somewhere that there was legislation or regulation in 2004 thus it could be that online apps pre 2004 could unenforceable and invalid. Mine is 2003. thanks for the earlier post!

 

Having now seen the opinions and links so far on the applications etc this leaves another pivotal issue, and one that perhaps could be followed through on, namely;

 

Blocking a Default and/or Removing defaults.

 

1/ The first issue I see is "can one apply pressure on, warn or advise a CRA to ignore a banks reference notifications (if thats the right term, hope you know what I mean) where the agreement is unenforcable, non existant or outside of the CC Act" thus keeping the record clear of the rogue banks attempts to discredit an individual, and the second;

 

2/ What are the implications and method in having a credit record cleaned after the event. However this question may be covered allready but these two are hand in hand it seems to me.

 

Back to MBNA - HH, any advice on my next letter to fire out, two points I really could cover are 1/ the unenforcability and 2/ that, based on the documents they provided I have not agreed to the sharing of my information to any other party (signed for t&c no 11 which is nothing about info sharing). Did not find anything in library's that quite fitted----any suggestions?----also would it be effectual to write to the CRA's regarding the impending mbna default and quote any legal stuff?

 

Have a good day

 

Best

 

Harrassed&Hopefull (the latter gaining ground now)

[The GodMother]

Results within legislation - Statute Law Database

[Harrassed&Hopefull]

Thanks Gm,

 

Results within legislation - Statute Law Database

 

 

That act says it all.

Tracked down the 'electronic communications' section, which I think was your intention, when I quote this act amendment in a letter can I say that 'the online application in no way constitutes an agreement as it is not in the 2004 required format AND was issued 20 months before this process was covered by the act.

Do you think these are both valid points?

 

And then if they are valid they have no agreement from me to permit data sharing i.e. my info with the CRA's, so would you quote all this in the notice to the CRA? I just also thought, s'pose one has to write to at least all 3 main CRA's i.e. experian, equifax and (can't remember other one)

 

The 'friendly' mbna staff have been ringing daily with a vengeance and in august sent me a pretty post-card, but not from Spain! Only Chester

 

Oh well off to bed now, dream about all those lovely folks in Chester ringing to say happy 'debtorday' tomorrow (well today technically)

 

Best

 

HH

[The GodMother]

this act electronic communication came in on 31st Dec 04 if that helps u?

 

the CRA you cant remember i think is call credit.

 

You can write to all the CRAs but they may just send you a letter saying thatnks but we cant do anything.

 

Personally i would advise you that you write to CRAs and advise the acc is in dispute and they have not got your permission to share your info with them. tell the. you want to add a notice of dispute on the account that goes something like this.

 

ACCOUNT IN DISPUTE. I HAVE NO KNOWLEDGE OF THIS ACCOUNT. ON XXXXXXXX MBNA WERE ASKED TO SEND ME A CONSUMER CREDIT AGREEMENT UNDER THE CONSUMER CREDIT ACT OF 1974. TO DATE THEY HAVE IGNORED THIS REQUEST. I AM DISPUTING THIS DEBT AS I BELIEVE THAT I DO NOT OWE MBNA ANY MONEY.

Add what you like to the cra but that is just an idea. The main points to get across is that your disputing the debt and that you dont believe or acknowledge the debt.

[Harrassed&Hopefull]

Thanks GM,

 

Get that rolling tonight if get back from work early enough.

An interesting thing in the CC Act amendment re. electonic data being legal/binding, indicates we can email our letters and notices avoiding the hastle of going to post office and recording deliveries (and so can the banks).

I wonder if the contact details on forum cover email addresses, have to take a look. All the posts I,ve read suggest recorded del. hard copy letters

I wonder----------?

 

Hows baby and mum progressing?

 

Cheers

 

H&H

[The GodMother]

from what i understand all types of communication which now includeds text and email that you feel are harrassement, like text messages asking you to ring XYZ company between 8 am and 9pm on XXXXX and the same with emails are classed as harrassement once you have asked them to communicate with you via writng only. All tho they could argue that a email is writing i have now taken to putting in my letters if you have any question please feel free to write to me at the above address that way they cannot argue that they did not understand my request or agrue they have done as i have asked.

 

Now regarding you sending the letters then i would advise that yes yo can send stuff by email but i would ask for a delivery report and read recipt if you can.

 

Now i know some companys sent you a automatic email saying complaint has been recieved but that does not mean anything.

 

Also i would still use royal mail as you ahev the ability to say well here is the signature for the letter so i know u recieved it.

 

I was sending email after email to studio cards last year our csept to dec re item missing from parcels and parcels that came threw royal mail damaged and despite having a automatic email saying the compaint had been recieved they were claiming they never recieved the complaint.

 

personally if i was going to send anything by email or fax i would add a line which says Please note i am also sending you this compalint via recorded delivery so i know you have a copy.

 

Any way on the other note Jorja and i are doing fine.

 

she is now 15 weeks old and nearly rooling over just cant get her arm fully across but is very good at doing full circles.

 

We also this she is either teething or hungry but cant tell as she is showing signs of both with the dribbling and eating of the hand as they are signs for both. She has had 2 lots of injections and trust me they knew about it and so did my ears.

 

She has been going threw the night since about 4 weeks old and was doing the minum of 6 hours b4 then. She is also drinking 7 oz bottles with ease but the HV has said dont put her up any more but i feel i might have to if she does not go onto food soon.

 

I am suffering a bit had a few probs with my section cut now it is all red and inflamed and i am back on reduce mobility and abilitys again but the doc has given me tabs and creams for in. it just really itches and resisting the itching is hard.

 

tho the OH is good at telling me about it and will even slap my hand if he catches me. i know its for my own good but it is a pain. Any way this is not about my probs but yours but thanks for asking.

 

GM.

[Harrassed&Hopefull]

Hey, its a mutual here, hope the itch means healing but dont get an injured hand as well! Bless her giving you good nights, she,s doin really well then.

Sounds like she's an early teether but man if she's hungry why not giv her more.

Back to borin biz. When I have done letters I'll post up for approval b4 post, tomorrow morning most probably.

Have a good 6 hours, I'm gonna try for 7!!

Cheers

H&H

[The GodMother]

its more like 12 now

[Harrassed&Hopefull]

Its better in even numbers so they say in china. there's glamour in dozens, 10's just seem well metric to me.:grin:

 

Did I see you advisin in the benefits section as well, you must help lots of folks get sorted.

 

Think I'll point my daughter toward the benefits posts, her hub is out of work and just signing on and they want this years self employed accounts and they are not done or due yet. I said they should accept the most recent years acc's.

 

Keep a spare bottle on you at all times You never know u no who may want u no wat.

 

BFN

HH

[The GodMother]

if there is anything i can help with in there just pm me a link and i will get round to it.

 

GM

[patrickq1]

Think I'll point my daughter toward the benefits posts, her hub is out of work and just signing on and they want this years self employed accounts and they are not done or due yet. I said they should accept the most recent years acc's.

hi h h had a look through your thread and seems things are in hand cept short on legal advice but at this moment in time you only need your SAR AND CCA information to deal with until you receive a response from these

as for the accounts they do not need an accountants to finalise he can do this on his own and operated at a loss but i think if you contact andrew in the business section he will give the proper guidlines for self employed peeps ok

good luck

patrickq1

[Harrassed&Hopefull]

Thanks GM and Pq1

Well Pq1 the C.C.A has been dealt with and the response was, well, sort of BOG OF! we don't want to discuss this any more and we will default you soon. That reply is on the photobucket link with the other docs.

Is the S.A.R you suggest different to the 1st letter I sent (on view above) with the £1 postal order?

H & H