Haggis v MBNA - Enforceable Agreement?

[haggis1984]

Thanks Supasnooper.

 

Letter from MBNA today threatening to start putting negative information on my credit report if I dont immediately clear the alledged arrears.

 

My position is:

 

Any information they put on my credit report will be innacurate as it include interest and charges added unlawfully since the account came into dispute;

 

As they have not been entitled to collect payment from me since they have failed to produce a true copy of the agreement there are no arrears;

 

As they have still not provided a true copy of my credit agreement the OFTs guidelines prohibit them processing any information with CRAs in any case;

 

So im considering getting an injunction to stop them: Injunction Online - Instant DIY Solution

 

Any thoughts? good idea/bad idea? Could this is come back and bite me in the bum?

[haggis1984]

Times up on first cpr request. Ive got a couple of questions:

 

Is there any point pursuing the CPR route with MBNA as they have admitted that they dont have the original agreement?

 

And Ive had no repsonse whatsoever from HFC. Being as I am no longer a customer of there's, and they wouldnt actually be party to any legal proceedings are they under any obligation to respond to my cpr request?

[supasnooper]

Is there any point pursuing the CPR route with MBNA as they have admitted that they dont have the original agreement?

 

Yes there is.

 

You need to pursue this as I have read of too many cases, when in court the Original Creditor magically produces the original CCA.

 

And Ive had no repsonse whatsoever from HFC. Being as I am no longer a customer of there's, and they wouldnt actually be party to any legal proceedings are they under any obligation to respond to my cpr request?

 

 

 

 

I'm not too sure on your last question..I would guess that they are under no obligation whatsoever.

[haggis1984]

hows this?

 

Dear Sirs

On 17/06/09 I wrote to your organisation requesting that you supply me a copy of the agreement for my account pursuant to the Civil Procedure Rules. My request extended to the full agreement which bore my signature.

 

I note you have recently informed me that you do not possess this document, but that you have requested it from HFC Bank. Therefore, I request that if there comes a time when this document comes into your possession it is immediately forwarded to me. If you are unable to obtain this agreement from HFC Bank I require you to inform me of this also. In view of the circumstances I do not feel it unreasonable to ask for this document to be disclosed, it is not commercially sensitive nor is it a restricted document and should be easily accessible for an organisation such as yours. Therefore I would ask that you provide me with a copy of the contract which bears my signature; I require the complete document with all its parts.

 

The reasons why I require this information are clearly set out within my original letter dated 17/06/09, but for clarity I require this document for the following reasons

 

• I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed
  

• I have recently become aware of a number of my rights as your customer, and, anticipating a change in my financial circumstances in the near future I want to be certain of my obligations to creditors.
  

• I am aware that MBNA offers a wide variety of Credit Cards, and as such, I want to be sure that the terms and conditions you previously sent me correspond to those within my original agreement.
  

• MBNA has acknowledged that you do not have the signed agreement in your possession. As such, what you have provided me thus far cannot be shown to be a ‘true copy’ until you have provided the original, signed agreement. Consequently until the original, signed agreement has been provided you will be in breach of the Consumer Credit Act.
  

 

Since this matter is likely to be subject to proceedings and given that your organisation is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this document to me.

 

The disclosure of these documents will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation. Therefore I again ask that you provide me with the documents which I have previously requested. I do not consider this request unreasonable and therefore if you fail to comply with my request I will be left no option but to make an application to Reading County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which I have requested.

 

Additionally I will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary

 

Please confirm by no later than 4pm on 18/07/09 that you will comply with my request or if you will not comply, please confirm that HFC have informed you that they do not possess this agreement.

[exchange]

Petition to: Request a special investigation by the FSA and OFT into the harrassment by consumers and their families through the debt collection practices of MBNA and specifically the practices related to telephone calls and defaults while in dispute

 

Posting this link to get MBNA's practices noticed. Please sign.

[haggis1984]

thanks for that exchange.

 

Quick update -

 

MBNAs first response advising me that they were investigating and would respond stated that I should expect a response by the 21st (yesterday). Still nothing though.

[haggis1984]

A Question:

 

Being as MBNA are regulated by the OFT are the OFTs regulations (Debt Collection Guidelines etc) considered implied contratual terms?

[steven4064]

No. In fact MBNA don't consider them at all

[haggis1984]

No. In fact MBNA don't consider them at all

 

lol so im learning!

 

Thanks steven

[haggis1984]

Just found out that HFC have paid in the cheque I sent for the SAR a couple of days ago.

 

Pretty surprised, was expecting them just to ignore it. Theyve got just over a week til their 40 days is up.

[haggis1984]

Found this in in supasnoopers defence on your thread:

 

17. Notwithstanding point 13, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

 

Now, Ive found this:

127.--(1) In the case of an application for an enforcement order under--

(a) Section 65(1) (improperly executed agreements)....

 

(3) The court shall not make an enforcement order under Section 65(1) if Section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under Section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)

 

 

 

These seem to contradict eachother - little bit confused.

Edited July 27, 2009 by haggis1984
Confused

[haggis1984]

Is it worthwhile making a complaint to the FOS?

[haggis1984]

Lol recieved a letter from MBNA today.

 

A compliment slip: 'As we are already processing your SAR we do not need to cash this postal order'

 

And attached a £1 postal order dated 20th July.

 

Its certainly not mine, they cashed it back in May after recieveing my CCA req!

[haggis1984]

Think I need some help now

 

Quick recap. Account opened with HFC, went to MBNA last sept. SARd HFC, they cashed cheque fairly recentley and we are now approaching 40 day deadline.

 

I have received 2 letters from HBOS (?!) in response to my SAR to HFC. One states that they only charge £10 per request so are refunding my cheque. The other states:

 

'Unfortunately we cannot access the data you require as the account you refer to was sold prior to the involvement of HBOS with your account provider.'

 

I thought HFC was owned by HSBC? Why when I write a letter to HFC, with a cheque made out to HFC (which was paid) do I get a reply from HBOS?

 

Confused!

[haggis1984]

bump

[haggis1984]

The dispute letter states that OFT regulations prohibit a company from adding charges/interest and sharing info with CRAs whilst a debt is disputed.

 

Can someone point me in the direction of an OFT publication that contains this guidance?

 

The unfair business practice guidance doesnt seem to refer to any of this.

[steven4064]

s78(6) of the CCA 1974 prohibts a creditor from taking any enforcement action whilst the account is in dispute because of the credior's non-compliance with s78(1)

[haggis1984]

I thought I heard that there were a few test cases regarding whether or not marking a credit file does count as enforcement?

 

Is there any way that MBNA could argue that adding charges/interest is not enforcement?

[steven4064]

I don't know about the first point.

 

Charges are defineitely enforcement, interest may or may not be, depending on what it is.

[haggis1984]

Thanks for that Steven

[haggis1984]

Just had a lovely phone call from MBNA on my mums house phone. They actually said they had the number because I called them on it in June. Some active listening worked a treat, when I evnetually got put through to a supervisor he agreed to remove the number then hang up on me:

 

MBNA: You need to make a payment today

ME: Youd like me to make a payment?

MBNA: Yes, I dont understand why your not paying this debt.

Me: You feel confused?

MBNA: Why wont you make a payment?

Me: Its detailed in my letters.

MBNA: I see in your letters that for some reason you think this account is unlawful?

Me: You believe taht I think the account is unlawful?

MBNA: If you dont make payments we will have to default you and go to court etc etc.

Me: Thats unfortunate, if I dont make payments your going to take me to court.

MBNA: You dont seem to care about this

Me: You dont think I care about this debt?

 

And round and round in circles we went for over half an hour.

 

I made up some rubbish (it might be true) that the data subject rights under the data protection act prevent them from processing information without my consent, and whilst I may have given them my implied consent to have my phone number by calling them from it I was withdrawing that implied consent.

 

Wonder how long itll be before they call again.

[steven4064]

You seem to be wondering how long it will be before they ring you again

 

 

 

 

[haggis1984]

Another bemusing twist

 

I SARd HFC (the original account holder) a few months ago. HBOS (?) replied with an adress for HSBC to send my SAR to. Sent my SAR to them. Today it was returned, along with my cheque, with a compliment slip from MBNA (?!).

 

'I am returning your letter and payment as we responded to your request by special delivery on 110809'

 

Yes MBNA did respond to my request. This request however was not made to MBNA, it was made to HFC/HSBC.

 

WTF is going on???!?!?!

[haggis1984]

Final response recieved today. To paraphrase:

 

We have provided you with everything we are obligated to.

We will continue sharing info with CRAs

Now give us some money

 

What should my next course of action be?

Edited August 28, 2009 by haggis1984

[steven4064]

Final response recieved today. To paraphrase:

 

We have provided you with everything we are obligated to.

We will continue sharing info with CRAs

Now give us some money

 

What should my next course of action be?

Have they, in fact, provided everything they are obliged to? If not, they cannot take enforcement action

 

If they have provided everything they are obligd to, then is it enforceable?

If not, you can tell them to get lost.