MBNA & Abbey cc, full and final settlement advice.

[MayRich]

They are asking for information that they know they are not entitled too, trouble is if you dont give it I'm sure they'll use it as an excuse to not offer the reduced repayments.

 

Exactly. bear in mind also this is why they try to use the phone instead of letters - so that they can make unreasonable statements, questions and demands that they wouldn't put in writing for legal reasons.

 

A good reason to insist on keeping it in writing, no matter how obstinate they are about it.

[kb_ba1]

Thank you all for your replies.

I think I've got a long, hard battle ahead of me... Well, I think for now I'll get the account in dispute letter off and see where that gets me. Then maybe talk to CCCS. But I'm not holding my breath that MBNA will help in any way shape or form. They don't seem like the nicest of people as I'm sure we all know. God knows how they sleep at night...

[kb_ba1]

Exactly. bear in mind also this is why they try to use the phone instead of letters - so that they can make unreasonable statements, questions and demands that they wouldn't put in writing for legal reasons.

 

A good reason to insist on keeping it in writing, no matter how obstinate they are about it.

 

Oh yes, I'm in no way saying a word to them on the phone. That hasn't got me anywhere apart from feeling patronized and bullied!

[kb_ba1]

Okey dokey... Just sent off my 'Account in dispute' letter after not receiving my CCA info. Am I safe not paying them anything until I get it? My payments are due by the 14th of April and although they've stated in their recent letter they are holding off on charges and interest for three months I don't want to rock the boat as there is no way I can magic up the £600 odd they want from me unless I win the lottery and if I can't afford to buy a ticket that ain't gonna happen!

 

Just don't want to end up with them taking me to court. I have a very good solicitor friend but she's gone and ended up emigrating to Oz. Typical!

[kb_ba1]

Can I just confirm that I don't have to pay anything whilst the account is in dispute? Just got a call from Aegis. Didn't answer of course. Here we go again...

 

My pet died this morning too and I'm on deadline at work, so could really do without them on my back again.

[kb_ba1]

*bump*

Can anyone advise? Sorry to bother everyone when I'm sure others are in a worse situation than me. Just feeling really down. Not to mention worried that Aegis will start calling me at all hours when I'm trying to cope with the loss of a wonderful pet and moving too. Trying not to let it all get on top of me but it's hard.

I just want this all to go away.

 

Thank you x

[Darset]

The relevant legislation is in the 1974 Consumer Credit Act (CCA), specifically sections 78(1) and 78(6). You can find a copy of the Act itself here: http://www.fisa.co.uk/downloads/CCA%201974.pdf

 

Section 78 refers to 'running-account' credit agreements - such as credit card agreements - and 78(1) sets out a debtor's right to information as:

"The creditor ... shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement ... showing [various pieces of current financial information]".

 

The 'executed agreement' is the agreement which was signed by you in accepting the terms offered and signed by the finance house in accepting you as a customer on those terms. However, the copy to be supplied can omit some information, such as the signature box, but it must otherwise be accurate (so as to allow you to confirm what you agreed to at the time).

 

There is a fee to be paid and a time period for compliance specified which later regulations set currently at £1 and, I believe though I currently can't find the exact reference, 12 working days with an allowance of two days for postage.

 

Section 78(6) says "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 ... ". The 1974 Act then adds a possible offence but that's subsequently been removed.

 

'To 'enforce' an agreement means simply taking action which is agreed or permitted under the terms of the agreement such as, almost certainly in this case, requiring repayment, applying interest, applying penalties, making adverse credit reports, taking recovery action, and so on.

 

The 1974 Act has variously been adjusted by working regulations and, in particular, by the 2006 Act although that later Act largely improved matters from the consumer's point of view and made a number of time-related and other changes. The essential points of section 78 remained unchanged as you can see if you look also at a document published by the Office of Fair Trading in June 2008 titled Consumer Credit Act 1974 Post-contract information requirements. You'll find this on-line at www.oft.gov.uk/shared-oft/business_leaflets/consumer_credit/oft1002.pdf See sections 8.5 and 9.4 which confirm the quotes from the Act given above.

 

So, yes, it appears clear that you have a right to ask for certain information and, provided you've asked for it properly, that if the creditor fails to supply it in time it has no right to hold you to the agreement so long as the default persists.

 

The problem comes in that CC companies seem to want to make up their own rules. This isn't helped by the fact that local Trading Standards officers don't necessarily understand as well as they perhaps should do the legal position. For various reasons I've seen the results of some eighteen CCA requests and at a guess I'd say four of them were valid, a failure rate of over 75% including two who simply didn't reply and kept returning the £1 cheque through the issuing bank as if it were nothing to do with them. The other failures typically used patronising, arrogant and supercilious language to suggest that the requester didn't understand the legal position.

 

Hence MBNA, for example, will consistently argue that they've provided the necessary information and will almost certainly take action which is strictly illegal but which is difficult to counter. This means, as someone earlier has pointed out, that you're in for a long, hard struggle with MBNA using every trick in the book to make you feel vulnerable, insecure and concerned about what the future holds for you.

 

Bear in mind, also, that the issues of getting information under the CCA and defending your position in court against recovery are two entirely separate things. That is, it seems clear that if your CCA request hasn't been complied with MBNA can't for the moment hold you to the agreement. However, they may well hold a valid, signed copy of the agreement and so they may well at a later stage both comply with the CCA request and, shortly after and with sufficient notice, take you to court for debt recovery. It may not be probable, granted, but you should be aware of that possibility.

 

I note, also, from the MBNA replies you posted earlier that you appear to be continuing to use your card(s). I'd say that's a very bad idea because, firstly, it will suggest to MBNA that you're more vulnerable financially than you really want to make out and, secondly, if further action is taken, then it may weaken your defence case by suggesting that you're trying to wriggle out of legitimately incurred debts. The point is that judges, for all their training, remain human and one role of a creditor's solicitor is to point out failure in law on your part and raise doubts against your claims of failure in law on the creditor's part. Again, that doesn't mean that you would lose, merely that I think you'd have further explaining to do and so your defence job would be that much harder.

 

In my own case - see http://www.consumeractiongroup.co.uk/forum/mbna/157941-darset-mbna-6.html - I simply stopped paying in August 2008, having warned MBNA that they were in breach of the CCA 1974. Further, I consistently told MBNA that they were in breach, and why, and simply refused to go along with their claims to the contrary. I also added pressure by putting in a Subject Access Request (SAR) under the data Protection Act (DPA) and subsequently finding various faults in that which I'm following up. MBNA has made a settlement offer of about 40%, I've responded with a lower one (about 13.5%), they're threatening me with default and I'm still refusing to pay anything at all, claiming they're behaving illegally. At the moment they've gone quiet but if they do issue default notices then I'll be straight on to Trading standards (the local executive arm of the OFT) with chapter and verse, as above, to support my argument.

 

I'm sorry this is such a long posting - and be aware that I'm not a lawyer and therefore these opinions are just that, opinions on which you must make up your own mind rather than any form of professional advice - but I wanted to point you to the specific information supporting your case and, secondly, to let you know that things will very likely get harder, possibly much harder, before they get easier. Also, be very clear in your own mind what your rights are, what you're prepared to do, what you're prepared to put up with and what you want to achieve. This is where sites like this, with disinterested advice from individuals who may have gone through similar processes, can be very helpful. Companies like MBNA and the rest try to browbeat and intimidate vulnerable individuals and you need to avoid being distracted from the central issues at any one time; that means, not taking comment even here on trust but following up links and references given to you and trying to understand the complex issues involved so that you can duly confound those whose main interest is screwing what they can out of you before throwing you aside. MBNA and its ilk will seek to confuse and frighten you and the best defence against that is to understand your proper rights and to draw on support and information here to back up your own views.

[Darset]

Your post 56 came while I was writing my reply so I'm sorry if what I said perhaps seems harsh or unsympathetic. Essentially, though, you need to remember that - from what you say - it's MBNA that's at fault. I detest the practice of so many large organisations trampling over individuals but, hard though it may be when everything seems to be going wrong, you need to take back control yourself and move away from possibly feeling guilty about such a large debt and fearful for the future. Forget about that for the present and concentrate on the thought that MBNA is behaving illegally and barbarically and so is really no different from a backstreet moneylender beating up someone who's defaulted. One purpose of the law - not that this always happens by any means - is to protect against such thuggish behaviour and if MBNA continues to overstep itself you do have recourse to redress. Concentrate on the CCA default for present, answer promptly any correspondence from MBNA (thereby avoiding giving them an excuse to phone), log any calls and complain about telephone harassment if appropriate.

[kb_ba1]

Hi Darset,

 

Thank you for your informative and helpful reply. Which made for an interesting read.

 

One thing I will mention is that I have not used the account since January 9th, which was purely down to Xmas expenditure. Not that I think for a moment they would except that as an excuse. I now realize that was a very stupid thing to do but it's too late now...

 

I except I have created a debt although I am sure I have probably paid off what I borrowed if you take off the interest. However, I suppose that's not the issue.

 

I sent off the dispute letter yesterday by recorded delivery so that should be received today.

 

Should I go on to send a SAR or just sit and wait? My partner is willing to try and get a loan so I can offer a F&F settlement, although the advice I've received here advises against that. Or should I see a solicitor? Or go back to the CAB...???

 

I know it will get worse before it gets better, but I need to look after my mental health at the same time.

 

I do want to say a massive thank you to everyone though. I know I'm probably asking the same questions over and over and sound pathetic, I'm just worried, confused and very scared.

[kb_ba1]

Your post 56 came while I was writing my reply so I'm sorry if what I said perhaps seems harsh or unsympathetic. Essentially, though, you need to remember that - from what you say - it's MBNA that's at fault. I detest the practice of so many large organisations trampling over individuals but, hard though it may be when everything seems to be going wrong, you need to take back control yourself and move away from possibly feeling guilty about such a large debt and fearful for the future. Forget about that for the present and concentrate on the thought that MBNA is behaving illegally and barbarically and so is really no different from a backstreet moneylender beating up someone who's defaulted. One purpose of the law - not that this always happens by any means - is to protect against such thuggish behaviour and if MBNA continues to overstep itself you do have recourse to redress. Concentrate on the CCA default for present, answer promptly any correspondence from MBNA (thereby avoiding giving them an excuse to phone), log any calls and complain about telephone harassment if appropriate.

 

Thanks for the other post. We must be crossing paths! Also don't worry about sounding either harsh or unsympathetic. It was helpful. I'm looking forward to seeing their response from my account in dispute letter and should they reply I will of course post up the letter. So for now I will just hold on.

 

Many thanks again Darset

[Darset]

I'd wait, particularly to make a settlement offer and possibly also re the SAR. Remember, as I said, that whatever the situation about debts MBNA is currently in the wrong. That's the issue you want to concentrate on. MBNA has failed to meet your proper request.

 

It's recognised that if two parties are in apparently irreconcilable dispute the one that breaks first will usually ends up conceding more. Let that be MBNA, not you. Tell them on every occasion that the simple point is that they're acting illegally and that you're perfectly prepared to discuss matters fully with them once they correct that. They won't agree, of course, and they'll harass you, so you'll need to stand firm. That's partly why I say that you need to confirm to yourself repeatedly that you're in the right on this one.

 

If MBNA see that you're confident and firm they'll eventually take what action they can to get rid of the problem and that may include making a settlement offer. (There are issues around what such an offer actually means - again, see my own thread or others here for discussions on that and points you need to be aware of.) Also, be very careful of borrowing money from people you know well to deal with a problem such as this - defaulting on MBNA may be very unpleasant but it's a whole lot better than defaulting on a friend or partner if things get really hard.

 

Sending an SAR may be useful if only because of what it might throw up but it might be better a little later on. You need to write the letter carefully to cover all the possible information you want - there are templates here and letters others have written. There's also interesting discussion going on about securitisation - the practice of bundling up debts and selling them on to special companies as investment vehicles for others - and what the implications are for the customers affected and which, I think, may turn out to be a really interesting can of worms so far as finance houses and customer treatment/privacy may be concerned.

 

And if you find the local CAB helpful and supportive, by all means discuss things further with them. In case they're not fully aware of the legalities, however, it might be useful to take bits of this thread or others and maybe a print out of the Act and of the OFT guidelines when you go.

[kb_ba1]

Once again Darset, many thanks for your thoughtful reply. I will hold off for now (including sending an SAR), until I hear back from them and like you say be firm in telling them that they are acting illegally if they continue to hassle me. I've read on these forums about F&F's so I will be careful should they eventually make me an 'offer'.

 

I will also read up on the threads relating to securitisation.

 

Thanks once again and I along with everyone else here I'm sure look forward to when I can draw a line under the whole situation.

[kb_ba1]

I'm sorry to ask this question again. But when I put the account in dispute which I have done (letter was signed for today) do I cease to pay them? And am I right in thinking that during this time they are not allowed to charge interest or late fees?

 

Just need it clearing up so I don't end up in even more of a pickle!

[Darset]

Nothing to do with being 'in dispute' - that's a consequence of the failure of MBNA to supply necessary information and not a trigger of any sort.

 

I've effectively answered your question in post 57, first nine or ten paragraphs. It's your decision but as far as I can see, and others agree, the Act is clear that if the information requested is not supplied then the creditor can't enforce the agreement while the default persists. That doesn't mean that MBNA won't try and nor does it mean that if it ever goes to court that MBNA will not produce the necessary supporting documentation and duly persuade the judge that they have a proper case. However, if my interpretation of the Act is correct, then you will be in no worse a position if that happens that you would be now - that is, if you owe £10,000 now and in the next six months pay nothing MBNA will claim that you actually owe, say, £10,000 + £1,500 interest + £150 worth of penalities; in fact you will still only owe £10,000 and not £10,000 + £1,650 and you'll have a perfectly good case, by reference to the CCA, to persuade the judge of this. Further, my guess is that between now and then an opportunity for settling would arise.

 

Like you, perhaps, I wondered when I stopped paying whether it was the right thing to do but I quickly became quite blase about it and, as I mention on my thread, refused to go along at all with MBNA threats or blandishments.

[kb_ba1]

Thanks Darset. I just sometimes need things to be confirmed over and over again!

 

Well, just waiting to see what Mr.Postman brings now. So I'm sure I'll be asking more questions when or if I receive anything from them. So I suppose it's just a case of sitting and waiting now and trying not to allow myself to worry.

[kb_ba1]

MBNA received my accounts in dispute letter last week. I have proof as it was sent recorded and lo and behold I have two letters from the lovely Aegis waiting for me when I got home from work last night. Now, I am right in thinking they aren't allowed to do this aren't I? So is it time to fire off a complaint to the OFT, FO and Trading Standards?

 

Many thanks!

[Darset]

Up to you though, personally, I'd wait. It's always going to take time for information to filter through from MBNA to Aegis or anyone else and, in any case, left to itself MBNA won't pay any attention to trivialities like legal obligations. Yes, Trading Standards may agree with you and take some action (apparently there isn't as much consistency about this as perhaps there should be) but it will always work to your advantage if you can show that you're being reasonable and have made every effort to resolve things yourself but the other party hasn't listened to reason.

 

If the situation becomes intolerable through phone calls or other forms of harassment then by all means bring in TS but if it's manageable then give MBNA enough rope to make a decent job of either hanging themselves or merely tying themselves up in knots. I'd consider writing to MBNA to complain about the Aegis letters, pointing out yet again the fact that they can't legally do this. If you can show a good file of reasonable letters consistently drawing MBNA's attention to the dispute and to the limits on action as against a file of MBNA letters thundering on regardless then this will help you with both TS, if relevant, and the court, if it comes to that.

 

Incidentally, you can't bring in the OFT direct as its role is looking at the wider picture as things affect consumers as a whole. The Trading Standards network, accessed direct or through Consumer Direct, is where you complain. And what do you mean by 'FO'?

[the_shadow]

Up to you though, personally, I'd wait. It's always going to take time for information to filter through from MBNA to Aegis or anyone else and, in any case, left to itself MBNA won't pay any attention to trivialities like legal obligations. Yes, Trading Standards may agree with you and take some action (apparently there isn't as much consistency about this as perhaps there should be) but it will always work to your advantage if you can show that you're being reasonable and have made every effort to resolve things yourself but the other party hasn't listened to reason.

 

If the situation becomes intolerable through phone calls or other forms of harassment then by all means bring in TS but if it's manageable then give MBNA enough rope to make a decent job of either hanging themselves or merely tying themselves up in knots. I'd consider writing to MBNA to complain about the Aegis letters, pointing out yet again the fact that they can't legally do this. If you can show a good file of reasonable letters consistently drawing MBNA's attention to the dispute and to the limits on action as against a file of MBNA letters thundering on regardless then this will help you with both TS, if relevant, and the court, if it comes to that.

 

Incidentally, you can't bring in the OFT direct as its role is looking at the wider picture as things affect consumers as a whole. The Trading Standards network, accessed direct or through Consumer Direct, is where you complain. And what do you mean by 'FO'?

 

Possibly Foreign Office??? :confused: Aegis are based in India :D

[kb_ba1]

Oh sorry, I meant the financial ombudsman. Though wasn't really sure who if any would be best. After your post Darset, I think I will write to MBNA once again pointing out that Aegis shouldn't be involved as the account is now is dispute. I'll also include proof of them receiving the dispute letter. Hopefully that will further help my case.

 

Thanks again

[Darset]

Ah! I rather liked the idea of David Milliband's concerning himself with MBNA's transgressions though I didn't think it likely, Aegis or no Aegis.

 

The Financial Ombudsman Service (FOS) wouldn't necessarily take this on, however, and even if they did I doubt it would be much help. However, it might be worth having an informal discussion with your local Trading Standards office to see what view they take about non-compliance with CCA stuff; my understanding is that although the position is clear enough some (many?) TS offices don't necessarily understand it properly and so may need to be educated/encouraged before they'll take any action. You could always point them to the OFT document I cited in one of the earlier posts if necessary.

[kb_ba1]

That's an idea Darset, if Mr Milliband can't help maybe Trading Standards will. I'll get something together for them too.

[kb_ba1]

I don't suppose there is a suitable template letter I can adapt to send MBNA to complain about them using Aegis to hassle me when the accounts are in dispute? Not really sure where to start or what if anything to quote law wise.

 

Thanks and sorry for my ignorance!

[Darset]

There may be a template letter; I don't know. HOwever, if you check back on my http://www.consumeractiongroup.co.uk/forum/mbna/157941-darset-mbna-6.htm thread you'll see some letters posted there which might help. For instance, the letter attached to post 84, paragraphs 3-9 does into both the CCA and the OFT guideance and although it doesn't specifically refer to bringing in third parties it would be quite relevant to include that as being not permitted on account of not being able to enforce the agreement.

 

And in another letter kicking off an argument with another CC provider (not yet posted on the CAG site) I wrote:

 

"For the avoidance of doubt, and contrary to the assertions in your letter, this means that, among other matters, you have no right to demand any further payments, no right to add interest, no right to apply penalties for non-payment or other matters, no right to issue notices relating to purported arrears or defaults, no rights to make adverse reports to credit reference agencies or other bodies and no rights to seek collection of purported arrears or to sell on a purported debt."

I don't think you need to be too exact about it - merely point out the fact they can't execute the agreement while the default continues and that that means, basically, not being able to do the things they might want to do to get paid, things like passing the debt on to Aegis to chase.

[kb_ba1]

You're a star Darset. Thanks a lot!

[summerbreeze]

I have found that the Aegis callers do not like the word ' harrassment '

If you say politely

' What is your name again please ? '

and then

' please remove my number from your systems and stop calling me or I will report you personally for telephone harrassment '

 

Then send the telephone harrassment letter to MBNA in Chester via recorded delivery .

 

I got a reply saying they would take my numbers off for 15 days but they seem to have forgotten to put them back on again .

 

Also if you have online access to your account ...go into it and delete your contact numbers.

 

This has worked well for me and now I get very very few calls . None from Aegis and just the odd witheld number which may be MBNA or could another of my creditors ..I dont know because I dont answer

Edited April 7, 2009 by summerbreeze
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