MBNA SAR Request

[Stagparty]

Hi Vint - yes there was.... there is but I think it is one that has been constructed. I raised this in a query on the SAR and was told it was an internet based application so this is what the agreement would have looked like. Although there is no box with room for a tick to indicate my acceptance, no box for them to sign to agree it either. Also the SAR query reply this morning makes reference to "A partial copy of your original T&C's can be found within the original credit agreement previously provided" (the bold emphasis is mine)

 

I can scan up the "agreement" if that would be useful. I will certainly get the CCA request off today. Doesn't the lack of original T&C's make the account unenforcable under the old rules? I did wonder why they were offering me a 65% discount on an account which as far as I believed was fully enforcable. I guess the light is beginning to show now as to why they have made that offer.

[Stagparty]

Thank you - I've got it and replied.

[vint1954]

First thing, was it an onlin application?

 

Scan the agreement in, remove your details and we can have a look.

 

Keep that handy if they have supplied it in an SAR.

 

Section 172 states:

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under-

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing this alleged debt in the future.

[Stagparty]

If I am being brutally honest, I think it was an online application but I'm not totally sure. I had a suspicion that could be a very important letter and it is already safely filed away in mt MBNA file.

 

The scanned agreement should be available very shortly.

 

Many thanks, again, for your help with my threads - I really do appreciate the help!

[the_shadow]

If I am being brutally honest, I think it was an online application but I'm not totally sure. I had a suspicion that could be a very important letter and it is already safely filed away in mt MBNA file.

 

The scanned agreement should be available very shortly.

 

Many thanks, again, for your help with my threads - I really do appreciate the help!

 

If it IS an online application then a tick will suffice as a signature (post December 2004).

 

IMHO they should in response to a s78 request show you the screens you saw at the time of application together with two tickboxes, one representing their signature and the other yours.

 

S.

[Stagparty]

Thanks "shadow". I'm getting a little confused now. I've carefully kept the pack of information that I received in order. The "agreement" is reproduced below - it has only 2 pages, no markings for signatures and appears to be totally incomplete.

 

This is the first page

This is the second page

 

A little later in the pack there is a letter saying "these are the up to date T&C's" (this was at the end of April 2009) and they appear to be another agreement...

 

This is the first page of what I think are the April 09 terms and conditions

This is the second page of what I think are the April 09 terms and conditions

This is the third page of what I think are the April 09 terms and conditions

This is the fourth page of what I think are the April 09 terms and conditions

 

You'll have to excuse my memory now, my original application was for a loyalty card( issued by MBNA), not an MBNA card itself. This scheme was then ended and the card reissued as an MBNA card.

[the_shadow]

Ok well the two pages you posted as the application contain the prescribed terms but have no bearing to you at all, no name/address/account number or signature.

 

As to the updated t&c, am I really reading correct that at 3a it states they wont charge you for going over the limit £0??? bizarre

 

If you applied for a loyalty card provided by them then that is the agreement they would need in court. Even if they re-issued as a MBNA card the actual original agreement would be needed imho whether this was online or by paper.

 

S.

[Stagparty]

To be fair Shadow -after the word Ref: on the first page of the set of 2 there is a 15 digit reference number. Immediately below the "your lender is" but above point 1 (Key financial information) is my name and address.

 

I can't though see where the tick boxes for their and my "signature" would be, nor where they are dated. The reference number at the top is in larger type than the rest of the document and appears to be a different type face.

 

Also I can't see to match the reference number to any other paperwork that is included in the SAR.

 

Does that make it any clearer?

[Stagparty]

First thing, was it an onlin application?

 

Scan the agreement in, remove your details and we can have a look.

 

Keep that handy if they have supplied it in an SAR.

 

Section 172 states:

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under-

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing this alleged debt in the future.

 

Sorry if I am being stupid here Vint, but hasn't this been sent under the Data Protection Act rather than the Consumer Credit Act?

It was, by the way, an online application although as above the documents sent have confused me.

[vint1954]

The distance marketing of consumer Financial Services

 

Background and required information

 

Introduction

 

The European Union's Directive on the Distance Marketing of Financial Services (the "Directive") came into force on 23 September 2002. It governs the sale of pensions, mortgages and other financial services products by means of distance communication, which includes sales taking place on-line or by e-mail, telephone, fax or regular mail.

A major goal of the Directive is to encourage competition between suppliers throughout the UK and Europe. Many financial services, such as banking, credit, insurance, personal pensions, investment or payment services, lend themselves to being sold at a distance, with consequent cost and access benefits for consumers and sellers alike.

The Directive aims to ensure that consumers using distance sales channels are not at a disadvantage to those using the more traditional sales channels. The consumer should have confidence in the security of the transaction, which in turn should lead to increased use of new technology for the sale and purchase of financial services.

The UK implemented the Directive in October 2004 through The Financial Services (Distance Marketing) Regulations (the "Regulations").

Who do the Regulations apply to?

 

The Regulations apply to suppliers of financial services. These include the providers of the product, for example the bank or insurance company, and also intermediaries, such as Independent Financial Advisers. All members of the financial services industry should be aware of Regulations and the impact they will have.

When do the Regulations apply?

 

The Regulations apply to contracts made on or after 31 October 2004 which use a means of distance communication in making the sale.

For the purposes of the Regulations "distance communication" includes any contract where the supplier contracts with the consumer without them meeting face to face, including at the point when the contract is concluded. This will therefore include sales taking place through a website, as well as sales over the telephone, or sales taking place by written correspondence (including e-mail).

Financial services is widely defined, and includes any service of a banking, credit, insurance, personal pension, investment or payment nature.

It should be noted that the Regulations only apply to consumer contracts.

Requirements of the Regulations

 

The Regulations seek to protect the consumer and ensure that the supplier discloses sufficient information both before and after the contract is concluded. The consumer must also have an opportunity to withdraw from the concluded contract without incurring liability during a specified cancellation period (often referred to as a "cooling-off" period).

Required information

 

Before the consumer is bound into the contract the supplier (or their intermediary) must supply the following information:

Supplier's identity

 

• the identity and main business of the supplier, geographical address at which the supplier is established and any other address relevant to the consumer's relationship with the supplier;
  
• where the supplier is not based in the consumers' EU Member State, but has a representative in that country, the identity of the representative should be given along with the geographical address;
  
• the identity and geographical address of any other professional who will have dealings with the consumer;
  
• particulars of registration in any trade or public register, for example a Companies House registration number;
  
• particulars of any relevant supervisory authority, for example a FSA registration number and a link to their web site;
  
• description of the main characteristics of the financial service;
  

Product details

 

• the total price to be paid by the consumer including all related fees etc.;
  
• where relevant, details should be given regarding any fluctuations in price that are dependent on factors out-with the supplier's control;
  
• notice of any extra taxes that may exist that are not paid via the supplier or imposed by him;
  
• any limitations of the period for which the information provided is valid;
  

Contract particulars

 

• arrangements for the payment and performance and any additional costs for the consumer for using distance communication;
  
• whether there is a right of cancellation and if so, cancellation information;
  
• the minimum duration of the distance contract in the case of financial services to be provided immediately;
  
• information on any rights of termination and any penalties imposed;
  
• practical instructions for exercising the right of cancellation;
  
• the European Economic Area member state whose laws the supplier is taking as the basis for the contract;
  
• any contractual clause on the law applicable to the distance contract or on the law applicable to the competent court;
  
• the languages that the contractual terms will be made in and in which the supplier will communicate for the duration of the contract;
  
• whether there is an out-of-court claim and the methods for accessing this; and
  
• the existence of guarantee funds or other compensation agreements.
  

The above information must be provided to the consumer in a clear and comprehensible manner on paper or another durable medium appropriate to the means of distance communication used before the contract can be concluded.

Telephone

 

The Regulations recognise the impracticalities of a supplier providing all of the above information to a consumer where the means of distance communication is over the telephone. In these circumstances the regulations allow a reduced requirement on what information is to be provided.

Best practice recommendation is that when suppliers promote and sell their products by telephone, they should begin by stating the caller's name and the fact that they are a sales representative employed by or acting on behalf of the supplier (naming the supplier). The caller should then clearly describe the product including the main characteristics. They should also clearly state the total price including taxes, or if it is not possible to give a fixed price then the means of calculating the price. The consumer should also be advised that further information is available on request and that there is the right to withdraw from the contract within the cancellation period.

As the call progresses and the consumer expresses an interest in entering the contract the supplier should provide information to the consumer regarding the respective contractual obligations.

Following up

 

As well as providing the prior information listed above, the supplier should also ensure that he communicates all the contractual terms and conditions specified above to the consumer on paper or another durable medium (which includes sending a copy through e-mail or post). The supplier should do this in good time prior to the conclusion of the contract. Where the consumer has requested that the contract be concluded using a means of distance communication then it should happen immediately after conclusion of the contract. Suppliers must also provide the consumer with a copy of the terms and conditions when requested unless the supplier has already communicated these to the consumer and they have not changed.

It is worth noting that suppliers should try to provide a copy of the terms and conditions as soon as possible in order to effectively conclude the contract. The cancellation period (discussed below) only begins when the paper or other durable medium copy of the contract terms and conditions is received by the consumer. If the supplier provides the required information in a timely manner the cancellation period will be kept to a minimum and the consumer will have as little time as possible to cancel the contract. This is a win-win situation for the supplier, who appears to their consumer to be helpful and efficient, while at the same time ensuring legal compliance and protecting their commercial interests.

The consumer can request that the means of distance communication be changed and the supplier should comply unless this is incompatible with the distance contract or the nature of the financial service provided to the consumer. For example, where the contract is an on-line financial service and it would be incompatible for the supplier to change to telephone communications.

Cancellation right

 

The Regulations give consumers the right to withdraw from financial services contracts entered into through distance selling.

If specified conditions are fulfilled the consumer has the right to cancel the contract within the cancellation period. This terminates the contract from the notice of termination being given.

Cancellation period

 

The cancellation period begins on the date of the conclusion of the contract and ends 14 days from that date. As discussed above the contract is concluded at the point at which the copy of the prior information is sent on paper or other durable medium, hence the commercial interest in sending the information as soon as possible.

In life insurance contracts the cancellation period runs from the date the consumer is informed that the contract has been concluded. The cancellation period in life insurance or personal pension contracts runs for 30 days instead of 14 days.

Method of cancellation

 

A cancellation notice is to be treated as properly given to the supplier where the consumer delivers, posts, faxes or e-mails it to the supplier. The consumer may also send the notice to an website which the supplier has indicated to the consumer may be used for that purpose.

Where the supplier has indicated to the consumer that cancellation notice may be given over the telephone this is also an acceptable method. However, it is worth noting that in a recent review of the Consumer Protection (Distance Selling) Regulations 2000 (which do not apply to financial services, but contain largely similar provisions) the DTI concluded that suppliers should not be required to accept cancellation notices by telephone, because of the evidential problems for smaller suppliers. It is likely that the financial services Regulations would follow this route if the same issue was raised.

Exceptions to right to cancel

 

There are certain circumstances where it is unreasonable to allow a consumer a right to cancel a distance contract. For example, in a contract for travel insurance a consumer could take out travel insurance, go on a week's holiday and return to cancel the insurance. This is clearly unfair.

Therefore a consumer has no right to cancel a distance contract:

• which relates to a financial service where the price depends on fluctuations in the financial markets which are out-with the control of the supplier; or
  
• which has been fully completed by both parties at the consumer's express request before the consumer gives notice of cancellation.
  

These are the main exceptions but there are other specific contracts that a consumer has no right to cancel, and it is always worth exploring to check whether specific products are excluded.

Payment for services provided before cancellation

 

Where the consumer cancels a contract the supplier shall refund any sum paid by or on behalf of the consumer, less any charge made under the contract, as soon as possible and within 30 days from the cancellation date. The 30 days will run from the day of cancellation or, if the supplier can prove it to be later, the day the supplier receives the notice of cancellation.

Payment by card

 

Where an individual has entered into a distance contract for the provision of a credit, charge, debit or store card and that card is used fraudulently the card holder can request cancellation of that payment and is entitled to have the sum re-credited by the card issuer.

In the event of a dispute it is for the card issuer to prove that use of the card was authorised.

Unsolicited services

 

The Regulations set out to protect individuals having to pay for financial services that have not been requested. Suppliers who provide unsolicited services and then demand payment are guilty of an offence and liable to a fine. It is also an offence for a supplier to threaten legal proceedings to an individual for failure to pay, threaten to or place the individual's name on a defaulter's list or invoke collection procedures.

Implementation and regulation

 

The Regulations are being implemented by amendments to the rules of the Financial Services Authority. The FSA published its Distance Marketing Directive Instrument of 15 April 2004. This instrument makes changes to the FSA Handbook, and is made by the FSA under pre-existing powers, such as the Financial Services and Markets Act 2000. To the extent that any part of the Directive is not appropriate to the control under the FSA rules, the Regulations set out the basis on which the rights will be exercised.

[vint1954]

Sorry if I am being stupid here Vint, but hasn't this been sent under the Data Protection Act rather than the Consumer Credit Act?

It was, by the way, an online application although as above the documents sent have confused me.

Yes it has, however the agreement within the SAR, needs to be a copy of the original.

[vint1954]

Thanks "shadow". I'm getting a little confused now. I've carefully kept the pack of information that I received in order. The "agreement" is reproduced below - it has only 2 pages, no markings for signatures and appears to be totally incomplete.

 

This is the first page

This is the second page

 

A little later in the pack there is a letter saying "these are the up to date T&C's" (this was at the end of April 2009) and they appear to be another agreement...

 

This is the first page of what I think are the April 09 terms and conditions

This is the second page of what I think are the April 09 terms and conditions

This is the third page of what I think are the April 09 terms and conditions

This is the fourth page of what I think are the April 09 terms and conditions

 

You'll have to excuse my memory now, my original application was for a loyalty card( issued by MBNA), not an MBNA card itself. This scheme was then ended and the card reissued as an MBNA card.

I think shadow is right. You should get the screen shots. The first 2 pages do not relate to on line applications as far as I can see.

[Stagparty]

Thanks for the clarification of the DPA / CCA mention earlier Vint.

 

Thanks for your input too Shadow.

 

I've now sent the CCA request so I guess all we can do is wait and see what comes back and then try and match it to the documents sent in the SAR?

[Stagparty]

Thanks for your help so far guys, the CCA request has now come back and I've scanned it below for your comments. At first look I think it is compliant.

 

Any comments etc are most gratefully welcomed

 

This is page 1 of the agreement

This is page 2 of the agreement

This is page 3 of the agreement

This is page 4 of the agreement

This is page 5 of the agreement

 

 

[vint1954]

If this is a late internet application, they are generally ok. I would wait for other posts though.

[Stagparty]

Thanks for your reply Vint, just for clarity.. the account was opened on 1 April 2007.

[Stagparty]

Has anyone else had opportunity to review this please?

 

If it does appear OK then I guess I should enter into some kind of negotiation regarding settlement, especially being offered a 65% discount. Why though, if the agreement was correct, would they offer such a discount?

[vint1954]

Has anyone else had opportunity to review this please?

 

If it does appear OK then I guess I should enter into some kind of negotiation regarding settlement, especially being offered a 65% discount. Why though, if the agreement was correct, would they offer such a discount?

It could be a short or partial settlement. This leaves them able to sell of the other 35%, which is probably charges and interest. The new owner will then chase you again.

 

It needs to be a full and final settlement and try to get defaults removed as part of the deal.

[Stagparty]

Update time - and another twist. I wrote to MBNA discussing the settlement and also pointing out that PPI had been mis-sold and that I would want that to be dealt with in the settlement and that the "claim" would follow under different cover. If I've understood this correctly this should have put the account into dispute.

 

I heard nothing more from MBNA and then today I have had a letter from "EXPERTO CREDITE" saying that "Varde Investments (Ireland) Limited had bought the interest of MBNA in the account and that Varde are now the legal owners. Furthermore Experto Credite have been appointed by Varde to recover any outstanding amounts etc.

 

This letter is from Experto, not Varde nor MBNA.

 

Has anyone any suggestions as to how I should respond please? Should I write to MBNA and ask why the heck they have sold an account they knew to be in dispute? Should I send the bemused letter to Experto? Should I ask for the Notice of Assignment?

 

Thanks again in advance guys.

[Stagparty]

Actually, I haven't heard of Experto Credite before - has anyone had any dealings with them?

[Stagparty]

Another thought - sorry about this...

 

I haven't even had a default notice from MBNA, let alone a termination letter. No doubt they will claim they sent them but they have been lost in the post due to the strikes.

 

If, as seems to frequently be the case with DN's, MBNA have screwed up the date as regards service, how do I get a document that demaonstrates this?

[vint1954]

Update time - and another twist. I wrote to MBNA discussing the settlement and also pointing out that PPI had been mis-sold and that I would want that to be dealt with in the settlement and that the "claim" would follow under different cover. If I've understood this correctly this should have put the account into dispute.

 

I heard nothing more from MBNA and then today I have had a letter from "EXPERTO CREDITE" saying that "Varde Investments (Ireland) Limited had bought the interest of MBNA in the account and that Varde are now the legal owners. Furthermore Experto Credite have been appointed by Varde to recover any outstanding amounts etc.

 

This letter is from Experto, not Varde nor MBNA.

 

Has anyone any suggestions as to how I should respond please? Should I write to MBNA and ask why the heck they have sold an account they knew to be in dispute? Should I send the bemused letter to Experto? Should I ask for the Notice of Assignment?

 

Thanks again in advance guys.

There are a lot of these floating around at the moment. MBNA have sold these debts offshore. Varde are Irish, so I dont think that they can collect in the uk.

 

Check your credit agreement number from your statements against the account number that they have quoted. They are probably different.

 

As far as Experto are concerned, before arguing the toss with them regarding agreements etc and that they have purchaced a pup, just reply to them as below:

 

I am somewhat bemused to receive your letter of the *******2009, demanding payment on account number xxxxxxxxxxxxx. The account number referenced in your letter, is not one that I recognise.

 

I feel sure that this is just an administrative error on your part and that this matter will now be closed.

 

Yours

[vint1954]

Or if the account number is the same:

 

Ref Account xxxxxxxxxxxxxxxxxxxxxxx

 

Dear xxxxxxxxx,

 

I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your company or Original Creditor is acknowledged.

 

On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. MBNA have failed to comply within the statutory time limit, supplying only a reconstructed agreement, that could not be linked to any agreement that MBNA claim that I have signed. In addition, this alleged account was placed in dispute on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.

 

Your attention is also drawn the Information Commissioners Office on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to MBNA under s10 of this act. You may wish to refresh yourselves of the implications of ignoring the Data Protection Act.

 

In addition, MBNA have unlawfully rescinded this alleged agreement, which has been accepted by me.

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be considered vexatious and unlawful. The Court's attention will drawn to the above statutory breaches.

 

 

 

I would remind you that while this alleged account remains in dispute, that MBNA:

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

MBNA have, by selling this account that remains in serious dispute and has been unlawfully rescinded, obviously chosen to ignore my lawful dispute.

I trust this out lines the situation and that you will take note of my comments, to avoid any further breaches of the Law, being committed by you.

[Guest HeftyHippo]

Actually, I haven't heard of Experto Credite before - has anyone had any dealings with them?

 

yes. recently had a letter claiming to be diappointed they hadn't had a reply to their first letter regarding 'my debt'. Never heard of them b4 and the letter carried no info that allowed me to identify any account that may have been sold to them or they may act for.

 

I simply wrote back and basically said never heard of you, never had any agreement with you so cant possibly owe you any money. Prove I owe you money or go away.

 

Waiting to see what they do. If they write back with proof they have bought a debt I will deal with it, but until I have proof they're just another [problem] trying it on. If they have bought a debt the original creditor should've told me it has been sold.

 

They have a Reading address and a quality certificate so they must have an actual presence in England. According to their website, oneof their directors was sales manager at what is now Capquest!

Edited November 6, 2009 by HeftyHippo

[Stagparty]

I've had a letter today from MBNA (who I thought had sold my account to Experto Credite) saying that "some of your personal data may have been compromised at one of our appointed vendors. The data may have included your name, address and telephone number as well as some of your personal security details."

 

They go on to say that they are placing a precautionary CIFAS marker on my credit file for 3 months and offering me 12 months free "Credit Expert" from Experian if I call and quote a reference number.

 

The letter is signed by Adrian Stearns, Director of Fraud.

 

Has anyone else had one of these? Anyone got an opinion if its genuine or a [problem] to make me call them?