Muffintop v mbna

[Terrier7]

Sorry, take out "threaten" on previous, simply just go for the injunction if you are under or in receipt of a threat of adverse credit reporting.

[underdog13]

Oh Mtop, re threat of adverse credit. I'm out of time as mine is past 6 years default date, but the advice I've received is if anyone threatens to apply a default notice or other adverse credit when in default after a CCA request, then threaten immediately apply for an ex parte interlocutory injunction and they will have to pay the costs. If they are in default then they have no legal basis for registering adverse history. Again, this is 'theoretical' and may need testing, but it sounds fine to me.

 

Great stuff, Terrier.

 

What happens if a cred defaults and terminates your agreement, whilst they are in default of your CCA request? Especially when they've been obliging enough to put it all in writing with clear dates proving their faux pas?

[Muffintop]

The problem I am going round and round and round with is. Who is saying the account is in dispute... I am

Who is saying that they have not fulfilled their sec 77/78 request for a true copy...... I am

 

I have just had a long conversation with trading standards who initially agreed to take on my case and have now back tracked big time. They agreed to pass my complaint onto cheshire for mbna. a person called Alison Nuttall who works there (Trading Standards) and can liaise with MBNA. If they get enough complaints then they may be able to do something..

But as it stands TS cant do anything, he mentioned the infringement under the Engerprise Act 2002 part 8 when they are still attempting to collect on a debt in dispute (never heard of that one)

I said well there is no protection for the consumer who has requested their cca and placed account in dispute and just because they think they can get around their obligations by sending terms and conditions alone and pasing it off as a true copy they can say the account isnt in dispute and then trash our credit files and also our lives.

 

Guy from TS told me that they do not accept that creditor has to send anything other than the t & C s from when the account was opened and that the OFT guidelines are the same.... I explained that all received in some cases was t & C's and nothing else and he said that this was sufficient!!!! what..... so round and round I go and now I know the only way this is ever going to be bottomed out one way or the other is going to court, so I will just have to sit and wait it out for that day, it may go against me but hopefully the dj will ask the creditor WHY ON EARTH didnt you just send the first generation copy of the agreement and none of this would have been necesary!

[underdog13]

The problem I am going round and round and round with is. Who is saying the account is in dispute... I am

Who is saying that they have not fulfilled their sec 77/78 request for a true copy...... I am

 

I have just had a long conversation with trading standards who initially agreed to take on my case and have now back tracked big time. They agreed to pass my complaint onto cheshire for mbna. a person called Alison Nuttall who works there (Trading Standards) and can liaise with MBNA. If they get enough complaints then they may be able to do something..

But as it stands TS cant do anything, he mentioned the infringement under the Engerprise Act 2002 part 8 when they are still attempting to collect on a debt in dispute (never heard of that one)

I said well there is no protection for the consumer who has requested their cca and placed account in dispute and just because they think they can get around their obligations by sending terms and conditions alone and pasing it off as a true copy they can say the account isnt in dispute and then trash our credit files and also our lives.

 

Guy from TS told me that they do not accept that creditor has to send anything other than the t & C s from when the account was opened and that the OFT guidelines are the same.... I explained that all received in some cases was t & C's and nothing else and he said that this was sufficient!!!! what..... so round and round I go and now I know the only way this is ever going to be bottomed out one way or the other is going to court, so I will just have to sit and wait it out for that day, it may go against me but hopefully the dj will ask the creditor WHY ON EARTH didnt you just send the first generation copy of the agreement and none of this would have been necesary!

 

My sympathies, Muffintop,

 

I think Chester TS are so far up MBNA's derriere, they can't see daylight:mad:

 

I guess the moral to all this conflicting info we are given is don't rely on s77/78 to get a copy af our agreements.

[Muffintop]

Your right but Iv tried cpr request too and that didnt work either, im so angry that the creditors can just get away with ruining our lives with their information they put on our credit files and get away with it. something has to be done... if everyone approached chester it would put the wind up them a bit.. or even watchdog...

I really thought TS were taking it seriously and now they are in too deep they have bailed right out. How in %%%% name can a copy of terms and conditions be enought to fulfill sec 77/78 as a true copy what is a true copy.... who defines what the true copy should be? I would really like to quote something definate at TS. So we are all following the same route and its wrong... we cant place our accounts in dispute and we will continue to get bad credit markers so we need to find another way... suggestions please guys

[dtjim]

It looks like the banks can make it up as they go along? I could'nt just write to peple asking for money, and if they dare to ask for proof give them a bad credit file. Basically, if we win against the banks then they are f*)^&d and that would open the flood gates! the goverment wont allow that, so they can just call the shots. Which way do we turn now?

[Terrier7]

It's difficult to have confidence that we are right within the law after much malpractice and conditioning to the contrary. After the superb information from and stance taken by my solicitor and huge amounts of information available on many threads here, there are many success stories. So, my advice is keep your nerve and go for it. I can't see how there is any way that a Court can make an order against anyone in direct contravention of the clear aspects enshrined in law. If one did, it would be immediately overturned on appeal. See my link on the previous page to one absolutely brilliant defence.

I appreciate that many people on here are lay persons and this may be the first or one of very few times that they find themselves faced with legal action or harrassment of some kind, I remember only too well the first time I decided to fight an excessive belated bill from an Insurance broker and trounced their solicitors as a litigant in person simply by reading the law / rules and sticking to them. I was accused of being a serial litigant! But it was a nerve wracking experience and many would rather avoid it, even if this means paying up when they are in the right. I'm going for them and below is the first draft of a letter finalised and issued today by my solicitor to a DCA :-

 

Your ref : xxx 11 March 2009

 

Dear Sirs,

 

Ref : my client, whose alleged account number is xxx.

 

 

NEITHER I NOR MY CLIENT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY, AGENTS OR ANYONE YOU MAY REPRESENT OR PURPORT TO REPRESENT.

 

Thank you for your undated reply further to your letter xx February in response to my formal request dated xx January 2009 in which you enclosed a piece of paper.

 

1. YOU are not mentioned anywhere on this piece of paper and I refer you to Section 196 of the Law of Property Act 1925, para’s 1 and 4. As my client has not received a Deed of Assignment or any formal notification whatsoever of any authority for XXXXXX to act or demand money from him, then, although Criminal Law is not my area of speciality, effectively, it appears you are attempting and have been involved in Extortion which is a criminal offence. Naturally, this will apply to individuals as well as Directors or Officers of your company and I will be looking into all possibilities.

 

2. The piece of paper refers to a Credit Agreement and not a Credit Card Agreement as strictly defined within the Consumer Credit (Agreements) Regulations 1983 SI 1983/1553. Therefore it is invalid for any purpose linked to a Credit Card account.

 

3. In an (unlikely) alternative, there are a number of irregularities in the aforementioned ‘piece of paper’ which render it invalid for the purposes of compliance with section 78(1) Consumer Credit Act 1974.

a) It is not a certified true copy.

b) It refers to terms and conditions which do not form part of it; I refer to section 60(1) Consumer Credit Act 1974.

c) It appears to have been altered or defaced.

d) My client believes that, if the original document exists, it was not signed at the time by the issuer and the individual and position of the purported signatory must be identified for substantiation.

e) The ‘Right to Cancel’ details were neither sent to my client nor do they form part of the ‘piece of paper’ you supplied, contrary to section 60(1) Consumer Credit Act 1974.

f) Part of it is obliterated.

 

3. I hereby place you on notice that, by your failure to comply with the strict deadlines, you are in breach of Section 78 (6) consumer Credit Act 1974 and by failing to do so within the statutory 30 day limit you are committing a criminal offence. As you are in default, then the following actions are demanded:-

 

a) A full refund of all monies extorted from my client, Plus interest, 6 years @ £XX per month, total £XXX.

b) A compensatory award, which I feel, is just and equitable as follows. For each month my client had to acquire funds, leave his work or other avocations, travel to a bank, execute the payment and return to work or his other avocations; I assess this at an average of X hours per event and it will be easy to substantiate. For the last six years, this would be XXX hours, claimed at the statutory allowed amount of £9.25 per hour, total £XXXXXX.

c) A compensatory award for extreme stress and suffering caused by hundreds of distressing and threatening telephone calls; the contribution of these to the breakdown in his marriage, loss of family home and part access to his children. This could be considerable, but, to aid the Court, I propose the following formula. My client estimates XX – XXX telephone calls since you started pursuing him. I suggest that we quantify the compensation by looking at how these deeply disturbing calls affected him and his ex wife. If we estimate the calls were between 5 – 15 minutes, afterwards there would be a period of worry and discussion, possible argument followed by a slow recovery and settling down; for each call, the effect until the previous status quo was reached could be anywhere from 2 – 4 hours. Let us agree an average of X hours per call, @ £9.25 per hour, as previous, total £XXXX.

Therefore we can then quantify the amount :- XXX calls @ £XXXX, total £XXXX.

d) My costs to date for consulting with my client, researching various aspects and corresponding to you :- I will limit X hours @ £XXX total £XXXX plus VAT, (total XXXX) for immediate settlement.

 

 

Please be on notice that you must pay the above (a – d, total £XXXXX Plus interest on (a)) within the next 14 days, failure to do so and the following actions will be initiated :-

 

1. Proceedings will be issued. Please be aware that my costs referred to above are only to date including this letter. If you do not cooperate and proceedings are commenced, it is envisaged that my costs to trial will not exceed £XXXXX and for a full hearing with Counsel, it is envisaged that my costs will not exceed £XXXXX.

2. An application to the Court for a Disclosure Order for copies of all your itemised telephone accounts for the last six years, so that all calls to my client can be accurately calculated.

3. An application for a Disclosure Order for a full copy of any records or information in your possession relating to my client.

4. A complaint will be raised with the Office of Fair Trading, Local Constabulary, Trading Standards and any other regulatory or other official body who would be interested.

 

Yours faithfully,

 

XX Solicitors

[Muffintop]

OMG that is a really strong letter. One interesting part for me (and Im going to read it over a few times again) was the part that said the piece of paper (nice) says its a Credit Agreement. This made my little heart skip with a flutter of hope.. the what I believe is a microfiche copy of my application form is missing the part CARD

Im not sure about the mention of it being a criminal offence. would you be able to check what criminal offence has been committed? I didnt believe extortion still the offence.Im relatively up to date on criminal law and cant think what criminal offence has been commited and would like an opportunity to comment on this aspect.

 

I am very grateful you have subbed to my thread and feel I may be following your lead. presume your solicitor is going to take it to court under sec127? this is very scary for someone who doesnt have the confidence of a solicitor behind them. What made you decide to go the solicitor route?

Thanks for posting this up and I still dont know what your thread is called to sub.

[the_shadow]

Your right but Iv tried cpr request too and that didnt work either, im so angry that the creditors can just get away with ruining our lives with their information they put on our credit files and get away with it. something has to be done... if everyone approached chester it would put the wind up them a bit.. or even watchdog...

I really thought TS were taking it seriously and now they are in too deep they have bailed right out. How in %%%% name can a copy of terms and conditions be enought to fulfill sec 77/78 as a true copy what is a true copy.... who defines what the true copy should be? I would really like to quote something definate at TS. So we are all following the same route and its wrong... we cant place our accounts in dispute and we will continue to get bad credit markers so we need to find another way... suggestions please guys

 

 

Unfortunately its the regs, I believe what they mean is for the OC to send out the agreement with say blank spaces where the info would be... but the regs below are being manipulated to sending out generic crap

 

Consumer Credit Cancellation...cuments Regulation 1983

3 General requirements as to form and content of copy documents

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument

or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act

shall be a true copy thereof.

(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 cancellable executed

agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an

agreement to which section 68(b) of the Act applies);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of

the Act, the name and address of the debtor or hirer

[Muffintop]

Thanks I would like to respond to Trading Standards ignorance and courage to challenge non compliance of sec 77/78 with suitable quoting of regs, where does this info come from pse

[Terrier7]

Hi Mtop, - There were a few alterations in the final version which I haven't seen as yet. The mention of criminal offences is from two aspects, firstly if someone is demanding money without legal authority (ie with menaces), no matter how the circumstances arose, then my information / understanding is that this comes under possible extortion etc. Similar to Blogs and Co 'Security' who say send you a notice that you owe them, or someone money and then try to enforce that with all manner of threats, which is why there are penalties in law to prevent the same. Naturally there are degrees of this, but if a 'Company' has already been put on notice (or is aware) that they have no legal right or basis to collect (as have probably all DCA's for some time) and they still continue or attempt to do so, this is arguably much more serious.

If someone committs an offence by failure to respond to the CCA request within the statutory period (I think I've read somewhere the inclusion of the word 'criminal', although is this not so by definition?) then such an offence will no doubt carry a penalty. I would be interested to know what information you have that it might not now be considered an offence. We need to use as many tools as possible to fight the tyranny of the DCA's, it may well be (or not) that the local Police would be loath to investigate a complaint by one person against a DCA, but 10, 100? We could definitely arrange sufficient - there would be a point at which they would have to investigate the breaking of law.

Also, look up :

http://www.consumeractiongroup.co.uk/forum/mbna/174475-muffintop-mbna-2.html

Post number 27 - Skeggsy v MBNA

Which states various points of interest re 'Card' omission.

 

My solicitor has been reviewing my papers, researching various aspects and has been brilliant. He thinks that if monies are / have been claimed illegally (without proper authorisation) then they should be returned as quite simply there is no authority or legal basis for them to be retained. He wants a test case (if they will go that far!) then will look at conditional fee arrangements for anyone with similar problems. I'm more than happy for him to use mine to test the water and will pass any tips / useful info on quite happily.

My thread is called 'Full Scale Attack DCA's!' let me know if you have problems finding it.

Oh, link herewith : http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/188190-scale-attack-dcas.html#post2027789

[Terrier7]

Hi PMW,

Interesting post, but, does it only apply to cancellation? (As opposed to the other laws under section when requesting your agreement).

From reading many of the various posts, it would seem the vast majority of DCA's do NOT have the original agreement and as you point out are manipulating or using smoke and mirrors to convince the vulnerable many that they do have documentation. In fact, I've yet to read about one that has! Even if they do, there appear to be many irregularities, such as the word 'CARD' being omitted from a so called Credit Card Agreement, or a DCA 'acquiring' an alleged 'debt' or no Deed of Assignment (with the statutory notice served by registered post) or any formal paperwork whatsoever and only telephoning people to say that they have 'taken over' the 'debt'. The various laws appear to be quite strict on the many aspects involved and quite rightly so - people need protection from bogus 'debt collectors' etc. and there is no reason why a professional institution should not have their house in order with all proper procedures followed, documentation filed etc.

An original document should be available either for inspection by a solicitor (or lay person) at any reasonable time or for production in Court. In fact it is a legal requirement under CPR rules. As we have seen many reports of documents with strange fonts cut and pasted in and other alterations, the only way to prevent fraud is to have sight of the original. Otherwise anyone could produce suspect 'copy' documents in Court with dire consequence for the legal process.

T7

[underdog13]

Yours post are truly inspirational, Terrier:D You've given me a glimmer of hope again.

 

Love that letter! Your solicitor must have a lot of backbone - how refreshing to find one that does. Don't suppose he works under conditional fee arrangements, does he? He'd be innundated with work from us lot if he did:D

 

Do keep us posted as to how you get on:)

[SteveH2508]

Terrier7

The 'offence' of failing to comply with a S77/78 request after 12+2+30 days was repealed last year I believe (para 3 of your letter).

[the_shadow]

Thanks I would like to respond to Trading Standards ignorance and courage to challenge non compliance of sec 77/78 with suitable quoting of regs, where does this info come from pse

 

Morning Muffintop..came from this doc.

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

[Terrier7]

Cheers Ste2508 - private message to you on this one!

Thanks Underdog - He is not the usual black masked rogue! Probably only the second genuine solicitor I have ever found in 30 plus years. I think its more a case of being thorough, researching / using the law and cold logic - if what has been paid is not authorised / legal / compliant then not only should payments cease and the alleged 'debt' be cancelled (or not enforced) but any payments already made should be returned with compensation if / when distress etc caused and any other costs or expenses reclaimed, so one is in the same position as before being in receipt of illegal treatment, debt claims etc. I happen to wholeheartedly agree and happy to be among the first to go for it!

It might be seen that we are using loopholes / technicalities etc to avoid debt which would otherwise be due, BUT there is the massive contributory factor of non compliance, bad / non existent record keeping, malpractice, vague and improperly drafted documents on behalf of the original lenders and DCA's. Please remember, these lot are supposed to be professional, competent organised and licensed organisations, with the benefit of huge resources and legal teams who should have set everything up correctly, executed agreements and kept proper records instead of rushing to throw as much money at people in the good times without thought to the consequences simply to earn as much money as possible.

Also, if you were taken to Court for a contract which included a term of say 33,333% interest or other extremely high, inordinate amount or penalty, providing the document had been properly executed with legal involvement if necessary, the Judge would have to find against you, no matter how much he / she may want to be leniant. They have to follow the Law. So, if the law states that there are numerous problems within so called 'agreements' or terms or other shortfalls which render them invalid, then that is what must happen, with full redress!

T

[underdog13]

Can't argue with that, Terrier:)

[angel_1]

Well said Terrier,,,those are my thoughts but you have put it so elegantly

 

i applaud you thank you:D

 

laters all, nite nite angel x

[davey77]

wow that's what i call a Solicitor. Never seen the approach taken of 'i do not acknowledge the debt yet i want all the money paid towards back' in such an aggressive way.

Will watch with interest.

[almond]

subbing great letter

[angel_1]

Terrier and all

 

could we encourage the solicitor to take en masse complaints from mbna - us on this forum,,,would be quite a few of us

 

look ill even bake him/her and you a fantastic home made pizza with all the trimmings,,,,,,lol

 

even just to look at our cases?

 

well you have just got to ask, if you dont,, then you dont get!

 

laters all angel x:cool:

[davey77]

Did somebody say Pizza?! I made one tonight! Send me your recipe please!

[underdog13]

Mines a Margarita with an extra topping of mushrooms please:D

[Terrier7]

Angel - actually that's what I'm working towards! It would be great to help solve everyone's problems / fears. We may need a test case first or if (more likely when) they cave in at the door of the Court (it probably won't be before! But, as the Court operates to fairly strict deadlines, they won't be able to obfuscate in the same way) then we will have solid ground to work on and in a position to fight all similar cases. It may be that he will charge a (small) admin fee to look a case over, but I'm hoping that he will have enough confidence and experience from my case to operate on a conditional fee basis (no win no fee!) to take them all fully on as I have other problems I want him to solve! This would be brill for all!

Look forward to the home made pizze (or choc fudge cake!).

T

[underdog13]

Very interesting info from PT on another thread - hope he won't mind me pasting it here, just in case anyone missed it:-)

 

let me expand slightly

 

The law as we all know requires a "A term stating the rate of any interest on the credit to be provided under the agreement"

 

So on the MBNA agreement it says £1000, £3000 & £5000 yes?

 

and under each amount of credit it says the various rates , Yes?

 

So what if your credit limit isnt there?

 

What if your credit limit was £10,000? £15,000 ???

 

there is nothing within the agreement to qualify the rate of interest if your credit limit isnt set out on the agreement? with me so far?

 

So MBNA may try and argue that the full details are found in a set of terms and conditions somewhere which we dont know about blah blah blah

 

Well that angle fails at the first hurdle as the Agreement Regulations , at Reg 2(4) requires all this info to be set out as a whole and not interspersed with other info so it cannot be set out elsewhere

 

so if your credit limit was different to that stated on your agreement KERCHING:wink:

 

does that help???????????????