MBNA - (Abbey & Virgin cards) CCA ??

[guzzleguts]

M Ive Sent You A Pm

[Muffintop]

M Ive Sent You A Pm

got it still cant pm you

[guzzleguts]

I will ask the site team to sort it out tommorow

 

Thanks GG

[guzzleguts]

Thank you steven

 

Got letter and sorted PM prob out, you were right had it switched off in options.

 

GG

[Worried6]

Sorry to break in - am new to the Forum - 'How do you PM another user?

Assume this means a direct message to another e mail address.

Maybe there are notes on site I can read to get up to speed.

 

I am just starting with MBNA who have sent me an odd looking CCA so I'll be re-readinbg a fair bit of this thread. Thanks for the help

 

P.

[guzzleguts]

Hi worried

 

Your prob best to start your own thread and you will get all the advice you need.

 

GG

[guzzleguts]

Just a quick queston, the reason i sent an SAR REQUEST TO mbna was to get the default notice, just been through it no default notice, do they have to supply it with the request?

 

Thanks GG

[steven4064]

I suppose that a DN is not strictly personal information. Why don't you specifically ask them to prove they sent you one.

[guzzleguts]

Hi steven

 

Just worried if i sent a request on its own, it might alert them to check it over, if it was in the SAR they might not?

 

I might be paranoid?

 

Thanks GG

[guzzleguts]

Should of said MBNA defaulted me about a year ago but never sent me a default notice

[steven4064]

If that is the case, then the default is unlawful

[guzzleguts]

Steven

 

What be my position re default if it goes to court.

 

Thanks GG

[banker_rhymes_with]

Hello GG!

 

Thanks for the PM on Subject Access Request and Copy Agreements.

 

Subject Access Request

 

Just a quick queston, the reason i sent an Subject Access Request REQUEST TO mbna was to get the default notice, just been through it no default notice, do they have to supply it with the request?

 

In theory, they should supply you with everything that can be related to you as the Data Subject. Anything that has your name, or that can clearly be linked to you via Address, Postcode, Telephone Numbers, email addresses or Account Numbers etc.

 

What you don't want to do, ideally, is to tip them off by being too specific about what you want. For example, if you want the Default Notice, ask them for lots of other things as well, and slip in Default Notice in the middle of the request!

 

The point I'm making is that if you ask for something they should have but forgot to do at the time, this may encourage them to create it for you!

 

So, the fact that it has not appeared in your Subject Access Request is a good sign.

 

One way to tackle this could be to hit them with a Notice that they have failed to respond in full to your Subject Access Request. I think CAG has a Template Letter, hold on while I find it...

 

...here it is:

 

Data Protection Act - Non-Compliance - Template Letters

 

Another tactic could be, after sending the above and them sending you back some more bumf...but still no Default Notice, is to ask them to send you a Letter signed by an Official of the bank that confirms they have sent you all they have.

 

If they later take you to Court and produce a Default Notice, the above may help to throw some major doubts on the validity of it.

 

As I was typing the above, I see you and Steven have added a couple of Posts!

 

Copy Agreenents

 

The issue of Courts and Original Agreements is always a thorny old chestnut. Common sense dictates that anyone holding a piece of paper that entitles them to benefit from hundreds if not thousands of pounds of interest, would hold onto that dearly...they wouldn't Scan it and Shred it!

 

Sadly, there is no specific law that says they must bring an Original or else, but there are many factors that you can bring into play to make it obvious to any sensible Judge that only the Original Agreement will do.

 

A copy is a copy, it can never, ever, be as good as the Original.

 

Your job is to plan things and gather the supporting evidence and facts to ridicule any banker that tries to fob you (and the Court) off with a copy.

 

Ask for copies, if you have not already done so, via s77-79 and via Subject Access Request.

 

Then, if what they send is dubious, or clearly not a nice crisp recent copy of an Original (same quality and size front and back), then keep asking for a better copy. Say what they have sent does not look like two sides of the same Document.

 

Then ask to see the Agreement.

 

Then consider CPR 31.16 if still not happy, and say you want to see and inspect the Original...not a copy via Post.

 

If they issue a Court Claim, then use CPR 31.14 straight away and ask the same thing...you want to make a Physical Inspection.

 

CPR PD 16 7.3 makes it clear that they should bring the Originals into Court.

 

If they bring copies, then they should follow the Civil Evidence Act 1995 and submit them as hearsay evidence (telling the Court in advance), with all the supporting evidence needed to validate the copies. If that evidence is weak, such as a pompous Witness Statement from some banking Big Wig who was never there at the time, then make the Court aware of this...perhaps aim to cross-examine the Witness, ask them when they started working for the bank, and ask how it is they know so much about something they had no part in etc!

 

If the bank say this is what it would've looked like, make them prove it. That is hard, and without a very detailed Document Management System, one that is Audited by external/independent inspection, it's far from certain that what they say is a copy, is really a copy.

 

The banks printed, and continue to print, thousands of Application Forms in all sizes, shapes and colours. That's a lot of printing and printing can and does go wrong. Client can cock-up the brief, the Designer can mis-read the Brief, the Client/Designer can miss checks, the Pre-Press work can miss issues, and finally the Printing Press can make a big mistake, like forgetting to print both sides.

 

Most Application Forms were low cost, volume Press Runs, so the likelihood of errors is far greater than people realise.

 

The bank may not have wanted anything on the back, either by design, stupidity or by arrogance. Later they may've changed their mind, but kept the design the same...just ordered a fresh batch with Terms on the back.

 

The bank may not have realised the error until now! Is it going to admit the error? Or, is it going to Scan and Shred every last one to destroy the evidence and allow it to duck the issue! Then rely on people's ignorance. Most Consumers will know nothing about Prescribed Terms anyway. So, Shred the evidence and 90 out of 100 will be easy Victories for them.

 

Let's think about this sensibly...

 

An Agreement is maybe the size and weight of a Sheet of A4.

 

Most Agreements are worth at least 1k to a bank (most several times that).

 

Even allowing for the cost of Card Dividers, you could easily fit 50 Agreements into a standard Filing Cabinet Drawer.

 

A 4 Drawer Filing Cabinet costs less than £100.

 

For a Total Investment of £200, including Card Dividers, the bank would have a Filing Cabinet that was worth over £200,000 to them if it contained 200 Agreements.

 

They could pack a room with filing Cabinets stuffed with Agreements, let's say 40 Cabinets...that makes even a small Room worth £8m+ to the bank, if not several times that.

 

You'd think they'd find the room for a Filing Cabinet or two, would you not?

 

So, why have so many bankers Shredded their Agreements? It does not add up. I think most know their Agreements were poop, and prefer to hide behind the copy Agreement issue, because that is far better than admitting their Agreements are Unenforceable!

 

Even if some of them are Enforceable, it would be better for them to Shred the lot than have Judges getting too used to them bringing Originals into Court. That would never do...the Judge might insist on an Original next time too!

 

That way, they will win 90% of battles, instead of lose 100% of them by admitting the problem. So what if they lose 10% of their battles to annoying people from CAG who question the copy Agreement validity, they'll be quite happy winning 90% against Consumers who don't realise there is a difference!

 

Cheers,

BRW

[guzzleguts]

Thanks BRW

 

Personaly i think MBNA will stuggle on the valid CCA front. but re the default notice, how can i make that an advantage when they have not sent me one,( im being optimistic that it is invalid).

 

Thanks for your time, great post

 

GG

[banker_rhymes_with]

Hello GG!

 

how can i make that an advantage when they have not sent me one,( im being optimistic that it is invalid).

 

Yes, that is the question!

 

I'll have to think about that.

 

I think that should win it for you, but my fear is they may pull one out of the hat if you cannot see if it was invalid, or prove it was never issued (how I don't know), before Court.

 

This is a favourite little game that MBNA plays...it doesn't always send out Default Notices and then goes ahead as if it did.

 

Cheers,

BRW

[guzzleguts]

Thanks BRW

 

Thats my worry, ive read many threads and not that many receive one.

 

If you do have any thoughts, im not having that much trouble with them yet but its coming.

 

GG

[creditcardmug]

This is the short form of what you would say with regard to the Default Notice.

 

So you really dont need to worry about it.

 

The Need for a Default notice

 

21. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

22. Notwithstanding point 21, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

23. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

[guzzleguts]

Hi CCM

 

Is what you have quoted from the consuner credit act 74 or elsewhere?

 

Section 21 could come in handy!

 

Tanks GG

[guzzleguts]

A queston for steven, brw or ccm

 

If a default notice under 2006 7 day terms, if it says on the notice,

you are in breach of the payment clause as arrears of monthly instalments,costs, expenses and interest amounting to £*** arenow due and outstanding.

 

To remedy the breach, you must pay the total arrears of £(same amount as above) before the date.

 

If they are claiming costs and expenses in the figure to remedy, is the notice still valid?

 

Thanks in advance

 

GG

[guzzleguts]

Just Bumping, Anyone On This

[creditcardmug]

What i posted in 92 was from one of PTs defences, yes it is in the CCA 1974.

 

The figure in the DN must not include any fees.

 

There are also many more ways in which a DN may not be in the prescribed form...most of them are incorrect in various ways.

[guzzleguts]

Thanks ccm for getting back to me.

 

I realise this sounds thick but does expenses and costs classed as fees.

 

GG

[creditcardmug]

Without going thro the whole thread again can you post up the DN, for us to have a look at?

 

When i say fees i mean penalty charges etc.

[guzzleguts]

Thanks CCM

 

I will post up in the morning

 

GG

[Muffintop]

Hya Guzzle, still following you

 

Have you received anything by chance from a mob called RMA yet chasing for MBNA?