SB100 v MBNA ( Link have issued proceedings )

[SB100]

Just noticed the cancellation rights too...

 

you will, for a short time, have the right to cancel.... details of how you can do this will be sent by the bank.

[underdog13]

I couldn't, in all certainty, say its actually doctored- unless you're referring to their references to conditions that don't exist on that piece of paper.

 

They have given the impression that its on the back of the application though by photocopying both on to the same piece of paper.

 

It's your call, SB100. If you think it was genuinely part of the original document, then it would be enforceable.

 

Please be aware though that MBNA are very fond of cut and pasting (allegedly:rolleyes:)

[SB100]

I don't think they're from the same piece of paper, but hear what you're saying. I'm not sure how far I'd get defending it on the basis that the word 'card' is omitted from the title and as such the application form isn't suitable for use as an agreement.

 

Also there's no reference whatsoever on the front to say that there's anything on the back of it.

 

For what its worth I don't believe the 'mbna' signature on there is on the original either, due to the size of it relative to the size of my signature.

[summerbreeze]

For what its worth I don't believe the 'mbna' signature on there is on the original either, due to the size of it relative to the size of my signature.

 

OH has a CCA from a card from 1996 with same sig from them and its same size as yours but has an 'edge' all around it as if its a stamped signature.However on his its very faint and on yours its very bold .

 

I still dont think that they would waste valuable space on the reverse of the Application form

 

I think the T and C were on a seperate slip and that there must have been another folder of T and C that contained the missing clauses referred to . They dont seem to be able to locate these missing clauses because I havent seen them shown on any T and C for similar age CCA that I have seen posted up anywhere.

[SB100]

Received this from MBNA this morning. It appears to be notification of default, but they say they've already defaulted me :-?

 

Any thoughts?

 

[SB100]

Just checked this, sent to me as part of my SAR, and there isn't an 8f... and clause 8 hardly seems relevant.

 

[alangee]

SB100

 

Have you calculated what your arrears should be. For example if you have missed the last three payments then your arrears should not be more than they total.

 

Making a demand for the full amount due, in my mind, terminates the agreement. The only way they can demand full payment in a Default Notice, is if the arrears actually total to the full amount.

 

Perhaps somebody from the site team can look at this and give us their take on it.

 

Alan

[SB100]

Thanks Alan, replied on other thread.

[SB100]

Just checked experian- the default shows in May, and it gives me a date the account was closed- also in May. The only default notification I've had from them is the one I've posted this morning though?

[pompeyfaith]

Just checking for you but im pretty certain that clause 8f is in the latest set of T&C's

 

PF

[landy_alert]

Hi SB100:)

 

When was your card taken out? I have OH's original MBNA card-carriers sent to him with his cards in June 2004 and May 2005 and have been having a look through the T&Cs on these to see how they compare with the current ones. On the card-carrier from June 2004 there is no 8f in the T&Cs, but on the card-carrier from May 2005 8f states -

 

'You, or your legal representatives, must pay your whole balance if

- this agreement ends;

- you fail to make a payment in full when it is due;

- you break an important part of this agreement or repeatedly break this agreement and fail to sort the matter out;

- a bankruptcy order is made against you, or you make a voluntary arrangement with your creditors; or

- you die'

 

Now we don't have OH's CCA from this card unfortunately, so I can't say for certain if the T&Cs went up to or beyond number 8, but on his later CCA for the 2005 card which we do have, the T&Cs only go up to 3b.

 

We have a similar situation with a DN (for the 2005 card) - OH's DN refers to a paragraph 8, which is not on his CCA, but is on the card-carrier - confusing, eh? Paragraph 8 on the 2005 card-carrier is headed 'paying your balance' and is broken down into sub-sections a-h.

 

Regards,

 

Landy x

[SB100]

Hi Landy- sorry its taken me so long to reply- I missed your contribution.

 

I *think* it was 1997, but I don't have the files with me. Will check when I get home.

 

My biggest issue with this is that they've already defaulted the account...

[SB100]

I've got a bit of an ongoing situation with a CC, and was surprised thay had taken so long to default- then I received this last week...

 

 

This is the first default notice I've received, but they clearly state that they've already informed the CRA's- which they do appear to have done.

 

I am also guessing that they must have terminated to be chasing the full balance of the account.

 

In my mind this is unlawful recision of contract (which they've failed to prove existed anyway..) and they're actually admitting to it in the first paragraph!?

 

I'm a bit confused by this one and would appreciate some help if poss.

 

Main thread here.. http://www.consumeractiongroup.co.uk/forum/mbna/188641-just-got-my-sar.html

 

Thanks

[citizenB]

Ok, I am not sure about this one.

 

They are saying it is a Default Notice. But it is asking for the whole balance.

 

You say you havent received a Default notice prior where they have asked for the arrears ?

 

How was this sent, 1st or 2nd class or UK Mail post ?

 

Unfortunately, even 2nd class mailing, unless you can prove that it was delivered later than 4 days from the date of the letter then the 14 clear days have been allowed.

 

I would think the only thing you could fight this on is the fact that you havent received the Default Notice asking for the arrears first.. they seem to have just gone straight in for the full balance.

 

Is paragraph 8f of the agreement correct (the payment clause) ?

[SB100]

No idea about 8f. The only t&c's they've supplied, with CCA and SAR, are the ones that were alleged to be on the back of the application they're relying on as the CCA- and there's no 8f on there.

[SB100]

Just to add, it came by UK Mail.

[cashins]

As I understand it UK mail is considered 2nd class mail (allow 4 days delivery).

 

If that is the case, the DN dates do not allow 14 days +4days, ie 18 days and would be invalid.

 

David

[banker_rhymes_with]

Hello SB100!

 

Thanks for the PM.

 

Hope you kept that UKMail Envelope, as that is indeed +4 Working Days for Service from date of posting!

 

But the Notice is a real pigs ear, almost as if it's written by someone new who also wanted to have a toot at you to vent their spleen!

 

Not exactly an example of how a DN should be written.

 

It's wrong on the Prescribed wording emphasis, i.e.:

 

HOT DARN, THEY GONE AND DONE IT LIKE THIS

 

WHEN IT WOULD'VE BEEN BETTER LIKE THIS.

 

But by the time the DN was issued, assuming they have not Terminated beforehand, and your balance before this DN did not equal the Arrears, then there must've been a split between Arrears and the remainder that was not then due?

 

If so, then this DN is therefore a Termination Notice wrapped around a defective DN.

 

Need to think about it some more, but it seems to be of more use to you than them!

 

Finally, if they have already Terminated, then this DN is no use to them in any event. It could just be that someone there thought it might look scary if they asked for full payment wrapped around what looked like an official letter quoting bits of Terms and bits of The Consumer Credit Act 1974.

 

Did their SAR show any signs of when they Charged Off the Account? Because MBNA have a habit of Charging Off the AC before they issue a DN. That is not necessarily Termination, because they could, in theory, sell to another true bank, and that other bank could pick up the batton, allow you to remedy a DN, and then carry on from there.

 

But if they Charged it Off without any plans in place to allow the Agreement to continue as it did, such that even a valid DN cannot be remedied, then I would argue that Charge Off can be regarded as Termination.

 

Remember that Charge Off is them logging the figures as a loss in their Accounts to claim the loss against Tax. The Charge Off will have a set Tax Point, that cannot be changed once entered. That's unless they want to explain all of this to HMRC.

 

Send another SAR if needed, to get a later picture of what they have been up to if the Charge Off is not covered by the last one.

 

Cheers,

BRW

Edited June 15, 2009 by banker_rhymes_with
Too many Cheers!

[SB100]

Thanks BRW. I sent the original SAR at the start of my 'battle', as I'd received no response to the CCA request. I'll send another today.

 

They were chasing arrears for several months with the usual veiled threats of default if I didn't pay immediately. They then appear to have wrapped eveything up together.

 

The note on my credit file with Equifax shows 'Account closed on 30/05/2009 with an outstanding balance of [differs by 60p from the amount on the default shown above]

[banker_rhymes_with]

Hello SB100!

 

Just spotted something on another Thread that mentions Clause 8f:

 

http://www.consumeractiongroup.co.uk/forum/mbna/184041-all-mbna-caggers-fight-18.html#post2228177

 

Looks like this is a new trick by MBNA, effectively one to try and duck their s87/s88 responsibilities!

 

IOW, they've added a Clause that appears to say that any default means they can ask for the whole balance back (i.e. including sums not yet due).

 

That may explain why they have added the whole balance to your DN.

 

I think this will be wide open to challenge as an Unfair Contract Term, and one that has been deliberately added to avoid their obligations within The Consumer Credit Act 1974.

 

In effect, they are saying that any breach means they can demand early payment of any future sum, despite the fact that s87/s88 says they need to issue a Default Notice to gain that right when a Consumer is already in default.

 

The CCA-1974 says one thing, MBNA think they can get around that by adding a NEW Clause that says they can duck s87/s88.

 

I somehow doubt that NEW Clause will stand up in Court. It's almost certainly an unfair term, and because it so clearly goes head to head with the Act, I think this one needs to be drawn to the attention of the OFT ASAP.

 

This is a blatent MBNA attempt to circumvent the Act and their need to issue a Default Notice (because they can't seem to get them right).

 

Cheers,

BRW

[SB100]

Thanks again BRW... it will be interesting to see what their next move is.

[SB100]

whilst I have your attention, could I be cheeky and ask you to have a look at the DN here- http://www.consumeractiongroup.co.uk/forum/legal-issues/199150-sb100-hfc-default-compliant.html which appears to have the same problems?

Thanks

[cashins]

Just spotted something on another Thread that mentions Clause 8f:

 

 

 

Here is the offending clause, (from T&C's sent to me 2008) and you will see they have quoted it verbatim.

 

8f You, or your legal representatives, must pay your whole balance if

 

- the agreement ends

 

- you fail to make a payment in full when it is due

 

- you break an important part of this agreement or repeatedly break this agreement and fail to sort it out.

 

- a bankruptcy order is made against you, or you make a voluntary arrangement with you creditors, or you die.

 

The red highlight is mine.

 

I particularly like the last paragraph - dying is no excuse!!!

 

Looking at the phraseology of the clause as a whole, I would assume they got the office boy on speed to draft it.

 

As PT pointed out, it's junk anyway.

 

David

 

PS - I have forwarded a copy of the whole T&C's to a site team member, so they should become generally available

[angel_1]

hello everyone pls take a look at the below thread very interesting!

 

http://www.consumeractiongroup.co.uk/forum/mbna/204839-band-together-against-them.html

 

 

have a sunny day laters angel x:-)

[SB100]

They've sold it to Link, although I haven't had a notice of assignment- just a Link threatogram.

 

How do I proceed? CCA request to Link?