Scrapper vs MBNA Potential Commencement of legal proceedings***WON***

[Scrapper]

Thanks Amber

 

Well he hasn't heard anything from anyone since he passed it to a solicitor, but I don't see how they can send him a letter advising that unless the arrears is paid by the 26th November they will default the account and then sell it off 26 days before and default his account 13 days before the arrears due date.

 

He hasn't even had a notice of assignment from anyone.

 

All very strange as I never got this far with mine

 

Thanks

 

Scrapper Coco

[Scrapper]

Sorry got that completely wrong. We have just checked his credit file and they actually defaulted his account on the 30/10/09 when the letter clearly sates that he will be defalted on the 26/11/09 unless the arrears is paid.

 

And the default notice letter is dated the 09/11/09 so in effect they had already defaulted him before they even sent the letter

 

Have they messed up?

 

Thanks

 

Scrapper Coco

[Scrapper]

And he's just informed me that he called them up to make his November token payment as per the norm and they flatly refused and told him he was going to be defaulted.

 

Scrapper Coco & My mate marmite

[amber]

Did you/he keep the envelope the default letter was sent in as this is deemed very important regarding dates and timeframes. You need to check it, see if it has an 'S' for second class post in the top right or left hand corner. If you have this info then we can ascertain if they have messed up on this point.

 

I'll go and find the relevant info regarding this and post it up shortly as I read it on one of the threads, makes interesting reading.

[amber]

Read through this thread on default notices: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/237513-dn-dates.html

[Scrapper]

I don't think he did keep it. I'll ask him later when he comes back from town.

 

Would it matter as the letter is dated the 9th November and his credit report has the default registered on the 30th October

 

And from what I just read it's 14 days excluding weekends.

 

So the letter is dated the 9th and worst case he would have recieved it on the 12th if posted 1st class. This being the case it only allowed 10 days to retify the problem. But as I have already pointed out his CF shows that the default was registered on the 30th October. 10 days before the letter was even sent and 27 days before the date on the letter.

 

 

Hang on why am I doing this and he's in town?

 

Mug I am

 

Thanks

Scrapper Coco

Edited December 12, 2009 by Scrapper

[Scrapper]

He hasn't kept the envelop, but he is 100% sure that it arrived on Friday the 13th.

 

And all his other letters from them have come via UK Mail so shouldn't be any different.

 

That being the case they only gave him 10 days to resolved the issue instead of the 14 days required.

 

So with the default being 4 days short of the require time limit and a default being registered on the 30th October and refusal to take his token payment for November as they hadn't supplied his CCA (Until now that is) surely they have broken every law in the book.

 

Can someone let me know

 

Thanks

Scrapper Coco

[vint1954]

The application for is just that. No prescribed terms. The prescribed terms are on a separate sheet. It is doubtfull if this has ever been the reverse of the application form. Was the previous address filled in at the top of the conditions? In my opinion this agreement is completely unenforcable. There are no prescribed terms before the signature. Any agreement or contract is signed at the end, after the retevent or prescribed terms. You would not sign a contract at the front of a document with all of the clauses after your signature.

 

The current T&C's are irelevant. YOu also need the T&C's from the time the account was opened.

 

The DN is faulty. Dated the 9th, service will be deemed 13th November. Default needs to be cleared by 27th at the earliest. They should not have registered the default or charged off, until after this date.

[vint1954]

Send them this.

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible application form, devoid of all prescribed terms, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

Let me explain here, what a true copy is:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

[vint1954]

Keep the DN safe and mark it received 13th November 2009

[Scrapper]

Hi Vint

 

Thanks for you help.

 

In answer to your question yes the previous address has been filled in by him above the top of the conditions. Does that make any difference?

 

Once again thanks

 

Scrapper Coco

[NPMBNA]

They shouldn't be adding and interest or late payment charges while the account is in dispute, but trust me they WILL and they really don't care about the rules or regulations. They are a law unto themselves.

 

They only time they sit up and take notice is if you really start to harass them they way I did or you report them.

 

I really won't worry about a thing at the moment. No agreement not a leg to stand on FULL STOP.

 

Have they registered you credit file as defaulted yet?

 

If they haven't and you can afford it? I would suggest making token payments, because as long as your paying them something they can't wreck your credit file. (They Will Anyway Trust Me, but at least you can argue you did everything in your power to resolve the issue and they ignored you) But make sure they are aware you are only making these payments as a good will gesture until they either produce your CCA or they admit they have got it.

 

Doe's that make sense?

 

Thanks

 

Scrapper Coco

 

I dont' think they have registered my credit file as defaulted....would I have received notification of this if they had?

when you say token payments, how much are we talking £20? £30? or do you mean the minimum payments?

 

Who and how should I report them? Is there template letters for me to send to, whoever I need to send them to?

Is it best I make a claim for interest charges? will this make them listen? I not really interested in making claims for interest charged I simply want the debt writing off as I feel I have paid them way more in interest over the years.

 

Thanks

[NPMBNA]

I dont' think they have registered my credit file as defaulted....would I have received notification of this if they had?

when you say token payments, how much are we talking £20? £30? or do you mean the minimum payments?

 

Who and how should I report them? Is there template letters for me to send to, whoever I need to send them to?

Is it best I make a claim for interest charges? will this make them listen? I not really interested in making claims for interest charged I simply want the debt writing off as I feel I have paid them way more in interest over the years.

 

Thanks

 

Hi all, just bumping this up as hoping for a little help.

 

Thanks so much

[Scrapper]

Hi NPMBNA

 

Sorry meant to reply yesterday, but got involved with something else.

 

Yes they have to send you notification if they are going to default and terminate your account. They have to give you at least 14 days to resolve the arrears issue.

 

With regards to token payments I paid them £100 per month, but I'm sure you can pay less until they produce your agreement.

 

From what I understand as well they are not allowed to refuse any form of payment while the account is in dispute, but I could be wrong.

 

My friend had been paying them a token payment and then they flatly refused to take any further payments from him and defaulted his account, but his solicitor advised him they are not allowed to do that, but they did anyway. And they completely messed the default up as well so they are even more in the crapper.

 

Have you sent your SAR? I'd send that first and if they done produce your CCA like you request them to you can under the data protection act complain to the ICO, but it's a long process.

 

I've won my dispute and ICO still have gotten back to me and that was 9 months ago. And FOS take even longer from what I have been reading

 

 

 

Todays Date Information Commissioner's Office - ICO

 

Thanks

 

Scrapper Coco

[NPMBNA]

Thanks Scrapper.

 

I've had a letter this morning which says,

 

We;re sorry that despite a recent reminder, we've not yet received your payment of £205.72 to bring your account up to date. You're approaching the time when another payemnt will become due.

 

We woud like you to continue enjoying the benefits of your Abbey CC, but you do need to make a payment to do so. This will also ensure that we report your account to the credit reference agencies as 'up to date', helping you to build a good payment record.

 

Payments made me made.....blah blah

 

Would I be better paying some kind of agency to deal with this for me? I really don't know what I'm doing here. Can anyone recommend one?

 

Thanks

[NPMBNA]

Hi I've received a letter today dated 15th December

 

Dear xxxxx

 

We apologise for the delay in responding to your request made under section 78 of the CCA 1974. We hope to write to you further regarding your request in due course.

 

In the meantime you should continue to make payments to your account. This has been confirmed in the recent Hight Court Judgement of McFuffick v The Royal Bank of Scotland plc on 6 October 2009 in which Mr Justice Flaux directed that even in circumstances where a lender has not yet complied with a request under the Act, that lender can continu to demand that payments be made to the account.

 

We acknowledge that some of our customers, even when they borrow responsibly, can fall into financial difficulty when circumstances are out of their control. We are committed to helping our customers get out of debt as quickly as their circumstances allow, and various repayment options can be discussed with our debt advisors on xxxxxx.

 

Yours faithfully

 

 

Can you please advise my next move. Thanks

[vint1954]

Hi I've received a letter today dated 15th December

 

Dear xxxxx

 

We apologise for the delay in responding to your request made under section 78 of the CCA 1974. We hope to write to you further regarding your request in due course.

 

In the meantime you should continue to make payments to your account. This has been confirmed in the recent Hight Court Judgement of McFuffick v The Royal Bank of Scotland plc on 6 October 2009 in which Mr Justice Flaux directed that even in circumstances where a lender has not yet complied with a request under the Act, that lender can continu to demand that payments be made to the account.

 

We acknowledge that some of our customers, even when they borrow responsibly, can fall into financial difficulty when circumstances are out of their control. We are committed to helping our customers get out of debt as quickly as their circumstances allow, and various repayment options can be discussed with our debt advisors on xxxxxx.

 

Yours faithfully

 

 

Can you please advise my next move. Thanks

McGuffick was a case where they had an agreement. This case is being appealed.

 

The CCA 1974, which is an act of parliament, not a judges view, states that after 12 +2 days they are in default. They should have told you that the case was under appeal.

[NPMBNA]

I have made a payment of £40 as goodwill gesture as suggested by a couple of people, on my return home from the bank there was a postcard from Global Vantedge saying they'd be out to see me on Saturday!!! no date, just Saturday.....

 

Is there any letters I can write to them telling them I have made the payment as a goodwill gesture etc.

 

I'm pretty sure they don't have an agreement, they card is about 15 years old and was originally taken out with National and Provincial.

 

Any ideas on what my next move should be?

[NPMBNA]

Plus,

 

I want the letter to mention about the charges and interest they've added whilst the account is in default, as I thought this wasn't allowed.

 

Any help would be greatly appreciated.

[Scrapper]

Evening

 

I wouldn't worry about the card advising of a visit. It's the normal bullsh*t threat from MBNA. All mouth no trousers.

 

Send them this letter. Amend accordingly

 

Dear xxxx

Account Ref xxxx

Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me by telephone over the past few weeks/months and these have been duly logged by time and date.

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you.

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

Yours faithfully,

 

 

 

Thanks

 

 

Scrapper Coco

[Scrapper]

Plus,

 

I want the letter to mention about the charges and interest they've added whilst the account is in default, as I thought this wasn't allowed.

 

Any help would be greatly appreciated.

 

It's not allowed, but do you think they give a toss?

 

Of course they don't as they are a law unto themselves and FOS, ICO & TS haven't got the jacobs to smack their bums.

 

Scrapper Coco

[Scrapper]

Plus,

 

I want the letter to mention about the charges and interest they've added whilst the account is in default, as I thought this wasn't allowed.

 

Any help would be greatly appreciated.

 

Send them this letter, but I can tell you for a fact it will make no odds and if anything their campaign against you will increase.

 

Account No: **** **** **** ****

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Dear Sir/Madam,

Thank you for your letter dated ****, received ****, the contents of which are noted.

I would like to draw your attention to the following so as not to be in any doubt about your company’s lack of compliance with my LEGAL request.

 

On ****, I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law.

 

Furthermore you should be aware that a creditor is NOT permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

· May not demand any payment on the account, nor am I obliged to offer any payment to you.

· May not add further interest or any charges to the account.

 

· May not pass the account to a third party.

 

· May not register any information in respect of the account with any credit reference agency.

 

· May not issue a default notice related to the account.

 

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I look forward to your final decision on this complaint within 14 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

I await your rapid response.

 

 

 

 

 

 

Thanks

Scrapper Coco

[Scrapper]

Morning All

 

Hope everyone is coping with all the snow? We've had so so much the police have closed my road (it's downhill straight onto a main road) was fun while it lasted watching cars slide sideways down the hill and seeing the terror on the drivers face as they approached the main road.

 

This morning my mate got the following letter from Debt Clear Recoveries & Investigations Ltd and the silly d*ck got caught of guard and spoke to them on the phone yesterday, but not for long thank god.

 

http://i420.photobucket.com/albums/pp284/djackson29/DCRIL1.jpg

 

Apart from having a cosy chat with them, they informed him that due to a recent ruling ??????? they could take him to court and win unless he started paying them again. Anyone know what they are on about???

 

He hasn't been able to contact his solicitor to find out what they meant or get an update as like so many other people getting to work has been a nightmare.

 

His solicitor has already told him the it falls down on the following issues:

 

 

1. MBNA Gold Advantage Card – Should State Credit Card Agreement?
   
2. No Credit Limit included
   
3. No Default Charges included
   
4. Terms & Conditions should be on the same document and not referred to in a separate document.
   
5. The document is totally illegible making effectively useless and unenforceable until such time they can produce an legible copy in court.
   
6. They have illegally defaulted and charged off the account 28 days before date given in the Notice and even if they hadn't it would still have been defective as he still wouldn't of had the full 14 days to correct the problem.
   

I've told him not to worry about it as if his solicitor didn't think he had a leg to stand on he wouldn't have taken his case on, but I just thought I get some other opinions.

 

Thanks

 

Scrapper Coco

[prophetdealer]

McGuffick was a case where they had an agreement. This case is being appealed.

 

The CCA 1974, which is an act of parliament, not a judges view, states that after 12 +2 days they are in default. They should have told you that the case was under appeal.

 

 

This case has been affirmed in the recent Manchester Cases. However, could you tell me what info they supplied in your request? Additionally, MCGuffick is not as far as I'm aware under appeal and would be far from appealing to appeal (sorry) due to the Manchester decisions.

 

EDIT

Edited January 9, 2010 by caro
Please keep all info on open forum

[prophetdealer]

Send them this letter, but I can tell you for a fact it will make no odds and if anything their campaign against you will increase.

 

Account No: **** **** **** ****

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Dear Sir/Madam,

 

Thank you for your letter dated ****, received ****, the contents of which are noted.

 

 

I would like to draw your attention to the following so as not to be in any doubt about your company’s lack of compliance with my LEGAL request.

 

On ****, I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law.

 

Furthermore you should be aware that a creditor is NOT permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

 

 

·May not demand any payment on the account, nor am I obliged to offer any payment to you.

 

·May not add further interest or any charges to the account.

 

·May not pass the account to a third party.

 

·May not register any information in respect of the account with any credit reference agency.

 

·May not issue a default notice related to the account.

 

 

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I look forward to your final decision on this complaint within 14 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

I await your rapid response.

 

 

 

 

 

 

Thanks

Scrapper Coco

 

 

The above wording that you have put in bold will be refutted straight away by the McGuffick decision as Justice Flaux has specifically stated that even during a period of unenforceability they can do all the things in bold. This is bad advise im afraid. You are receiving nothing more than a payment holiday with this unenforceability unless you can get a court order stating otherwise. MBNA will (i guarentee) now affirm McGuffick with the Manchester cases, especially as now under s140A the judge has stated that this does not create an unfair relationship.

 

I invite you to write to them otherwise but the High Court decision stands until it has been argued and won otherwise.