Link Financial and MBNA Card debt

[postggj]

Well This Borders On A Letter Ive Just Done For Another Cagger

 

Hang Tight And Ill Post It

[postggj]

try this with link, recorded delievery

 

 

 

HPMUM

XXxx

Xxx

LINK FINANCIAL

Xxxx

Xxx

Xx

 

Date xxxx

Your ref xxxx

Elevated complaints procedure

 

Dear sir/madam

I am writing you this letter to be dealt with by your own internal complaints procedure.

You contacted me on xyz with ref to an alleged debt with mbna.

On contacting mbna, I was informed that my account has been sold to your company.

On xyz, I made a formal request to link financial for a copy of my agreement under s77 to s 79 of the consumer credit act with your company, link financial.

Link financial has failed to respond to my legal request and I informed them that a state of default now exists between me and link financial.

As you are no doubt aware a creditor is prohibited from any enforcement action while the default continues, that includes adding interest, charges, defaulting and selling the account to an outside party.

In relation to this matter and your legal obligations on this account I would require by return the following documents

1.A true copy of the original agreement

2.A true copy of the original default and termination notice

3.An up to date statement on this alleged account including all charges and interest applied, including dates these debits were applied.

4.A copy of the notice of assignment giving your company legal authority over this account

5.A copy or the recorded delivery track and trace number to comply with service as to the law of property act 1925

 

Yours sincerely

 

Xxxx

[pumpytums]

Hi Hp mum,

I sent my SAR to the following :-

 

Customer Advocate Office

MBNA Europe Bank Ltd

Chester Business Park

Chester

CH4 9FB

 

Hope this helps they replied just under the 40days too.

 

Pumpytums

[HP Mum]

Thank you Postggj.

But now I am having second thoughts. I am just wondering if I should hang fire on sending anything to either of them?

 

The reason I say that is because of my recent dealings with Halifax. H sent a Claim form; I replied and filed a Defence at the same time as sending in CPR 31.14 & 18. This gave them less days, by law, than the SAR route to collate all the necessary info. Within 6 weeks they had abandoned the claim and decided to not pursue the total debt. Yea!

 

So, at the 11th hour before posting my SAR, I am just sitting here wondering if it is better to let Link issue a Claim form to maybe have the same result as with H ?

 

I have paid Link nothing since Aug so I am wondering why they have not issued a claim already, given the months that have passed ? Unless they already know the agreement is unenforceable ?

 

Anyone any insight on this alternative potential route ?

[postggj]

any hint of a dispute and link, just like any dca will just sell it on

 

it costs money to take someone to court

 

if you can put up withthere bs fine

i myself would just ignore

let them issue the court claim and then defend

 

but thats me and its your choice at the end of the day

[vint1954]

Data Protection Act 1998

 

 

 

Subject Access Request

Dear Sir/Madam

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement/s and any terms and conditions that applied to the account/s at the time of default and at the time the account/s was/were opened.

2. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR. - delete or add this depending on whether you are sending this to the original creditor/or a debt collection agency

 

3. True copies of any notice of assignment and default notices or enforcement notice that you/or name of the original creditor sent me, with a copy of any proof of postage that you hold.

 

4. Documents relating to any insurance added to the account/s, including the insurance contract and terms and conditions, date/s they were/ it was added and deleted. (if applicable).

 

5. Details of any collection charges added to the account/s; specifically, the date they were/it was levied, the amount of the charge, a detailed financial breakdown of how the charge was/charges were calculated, and what the charge covers/charges cover.

 

6. Specific details of the fees/charges levied by any other agency in respect of this account/these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

7. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

8. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

9. Copies of statements for the entire duration of the credit agreement/s.

 

10.Termination notices

 

PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec)

 

You are reminded that you are obliged to supply all the above documents in line with the Information Commissioners Technical Guidance update (Dated August 2007)

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

sign your name but put crosses through it so it can't be 'lifted'

[vint1954]

Hi Hp Mum,

 

It took them 11 months to issue a claim against me. Received it today. Have to work on a defence now.

[vint1954]

Your SAR will give you the termination date. I know what postggj means about letting them take court action, probably best in the end but I do like to have the last letter in the file.

[HP Mum]

Vint - Did they do issue claim electronically and include the CCA and DN? If not, check my thread on Halifax. Others helped on how to a) acknowledge b) defend the whole claim. Which is how mine got abandoned by H.

I need to take a bath and think on this one ! To think on best route for me...

[HP Mum]

P - What does this mean ?

5.A copy or the recorded delivery track and trace number to comply with service as to the law of property act 1925

[postggj]

Under The Law Of Property Act 1925

A Notice Of Assignment By The New Creditor Needs To Be Served On The Debtor By Registered/recorded Mail

 

With Out It, The Creditor Has No Claim Or Cause For Action

 

In English

 

They Are Stuffed

[postggj]

May I Ask Where You Got 5a From

 

That Legislation Is Under Paragraph 196 Section 4 Of The Law Of Property Act 1925

[HP Mum]

Not 5a. 5. A copy..... just not that much space between 5 and A. sorry for the confusion....

Thank you for the clarification. That is very interesting. I never got the letter from Link by registered post.

Hmm. Need to consider what to do.

But also have kids presents to wrap, so this will have to wait til tomorrow !!

[gezwee]

NOA would need to be served by hand of the assignor (MBNA) by registered post.

 

No NOA from MBNA, no rights to issue proceedings from a third party DCA without bringing MBNA into the fold.

 

In such circumstance, if you are ever issued an N1 by a DCA (unlikely to be honest) and they do not enter the OC as party to claim it wouldnt take much effort to have it struck out.

 

Absolute assignment must be effected prior to comencement of proceedings.

 

Equitable assignment (different animal altogether) is generally the case for DCA's and the term 'sold' or 'purchased' is their preferred turn of phrase with their hello letter. In basic terms it offers them a contractual right/duty to collect the 'debt' but offers them little else in the way of legal recourse.......... thats why most are apallingly rude and keen to issue threats and little else.

[postggj]

ive been trying to put it like that all day

 

thanks

[jdes26]

once you get SAR claim all charges and ppi.... i claimed mine £1900 and then told link to go away as cca was trash ...... that was months ago and they know they cant enforce

 

i wish you all the luck

[HP Mum]

I have been searching the templates for a letter to send Link. A template for: When a dca does not send s.78 details as requested and how they can't enforce the debt now and need to return the £1 fee and return it to mbna"

Where do I look ?

[HP Mum]

And is it 12+2 days ; ie 14 days ?

or 12+2 working days ; ie 18 days ?

[vint1954]

I have been searching the templates for a letter to send Link. A template for: When a dca does not send s.78 details as requested and how they can't enforce the debt now and need to return the £1 fee and return it to mbna"

Where do I look ?

You can amend this one.

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On 27/03/09, 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. 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.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, 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 signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) 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;

 

Clearly as no agreement has been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(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).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from 27/03/09 or such time as a court makes an enforcement order.

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

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 vexatious and unlawful

 

I trust this out lines the situation

Yours faithfully

[vint1954]

And is it 12+2 days ; ie 14 days ?

or 12+2 working days ; ie 18 days ?

Working days

[HP Mum]

thanks Vint.

Will tweek and try to post today/tomorrow.

[HP Mum]

I have tweeked various templates and come up with the below to send to Link.

If I have got anything wrong please could someone advise soonest as I intend to print and post this afternoon.

I have not heard a thing from Link since I sent my S78 request a couple months ago.

 

Re: My request under s78 of the Consumer Credit Act 1974

ACCOUNT IN DISPUTE

 

I made a formal request, dated xx/09, sent by Special Delivery, for a true signed Agreement for the alleged account pursuant to the Consumer Credit Act 1974, S.78. Link has failed to comply with my request, and as such the account entered default on xx/2009.

 

The Act demands that I be supplied with a true copy of the executed Credit Agreement that exists in relation to the above account; that it contains all of the prescribed terms; all other required terms and statutory notices; and signed by both parties, as defined in section 61(1) of Consumer Credit Act 1974 and subsequent Statutory Instruments. If the executed Agreement contained any reference to any other document, you are also obliged to send me a copy of that document. A full statement of this account should also have been sent to me detailing all debits and credits to the account

I may ask for all this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated xx/2009.

Upon receipt of the original request the specified account legally entered into disputed status.

 

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original Credit Agreement. This means that, unless you can produce such an Agreement, this alleged debt is not enforceable in law.

You have failed to comply with a lawful request for a true, signed copy of the alleged said Agreement and other relevant documents mentioned in it; failed to send a full statement of the account; and failed to provide any of the documentation requested.

You will also be aware of the Office of Fair Trading's guidelines on debt collection. Examples of Unfair Practices are as follows:

2.8 (i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued',

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'.

 

Thus, any legal action you pursue will be considered as both unlawful and vexatious and I shall counterclaim that any such action constitutes unlawful harassment.

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

- You may not demand any payment on the account, nor am I obliged to offer any payment to you.

- You may not add further interest or any charges to the account.

- You may not pass the account to a third party.

- You may not register any information in respect of the account with any credit reference agency.

- You may not issue a default notice related to the account.

 

Please note you may consider this letter, as a Statutory Notice under S.10 of the Data Protection Act 1998, to cease processing any data in relation to this account - with immediate effect.

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must, within 21 days, provide me with a detailed breakdown of your reasoning to continue to process my data.

It is not sufficient to simply state that you have a ‘legal right’. You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

Any such attempts to share my data, without my consent, will be met with a complaint to the Information Commissioners Office.

Should you not respond within 21 days, I expect this to mean you agree to remove all such data.

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed Credit Agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation. You entered into a default on xx/2009.

 

I am now giving you a further 7 days, from receipt of this letter, to contact me with your intentions to resolve this matter which is now a formal complaint; otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

 

Take further note that continued telephone calls, after the receipt of a request not to call, may constitute a criminal offence under Section 127 of the Communications Act 2003.

Communicate in writing and ONLY in writing; your telephone calls will NOT be answered.

 

To sum up, I will not be making any further payments to you until you provide me with the documents I have requested. Should you not have any signed Credit Agreement in relation to this alleged debt, please confirm this in writing to me. And return the £1.00 fee.

 

I look forward to your written reply.

Yours faithfully,

[HP Mum]

hello again

I have today received a letter from Link:

 

You have recently made a request under sect 77/78 for copies of various documents.

As you are aware Link Financial purchased your debt from mbna on xx/09 and as such we do not always hold this documentation. We have requested a copy of the Agreement and the most recent terms and conditions your account was operated under from mbna and look forward to sending this to you in the near future, however please be advised that this can take up to 30 days to provide.

 

Firstly, the date they admit they bought the debt was 4 days before mbna had given me to pay the arrears.

Surely mbna should not have sold it before the date they gave me to pay ??

And what benefit is this to me ?

 

Secondly, they say they have "requested most recent t&cs my account was operated under". Shouldn't they be sending the t&cs that referred to my account at set up ?? Rather than at cancellation ?

Can someone advise on this ?

 

Thirdly, have others had such letters from Link ? And how does this normally pan out ?

 

And one last thing - Link failed to respond to my request for S78 within the Statutory Time of 12+2. They should have responded start December. Is there any action or complaint I take, despite them responding to my 2nd request ?

 

Thanks...

[vint1954]

hello again

I have today received a letter from Link:

 

You have recently made a request under sect 77/78 for copies of various documents.

As you are aware Link Financial purchased your debt from mbna on xx/09 and as such we do not always hold this documentation. We have requested a copy of the Agreement and the most recent terms and conditions your account was operated under from mbna and look forward to sending this to you in the near future, however please be advised that this can take up to 30 days to provide.

 

And the T&C's at the time the account was opend, plus a statement of account at the time your request was made.

 

Firstly, the date they admit they bought the debt was 4 days before mbna had given me to pay the arrears.

 

If the statement confirms that, then they have unlawfully rescinded.

Surely mbna should not have sold it before the date they gave me to pay ??

 

No

And what benefit is this to me ?

 

Secondly, they say they have "requested most recent t&cs my account was operated under". Shouldn't they be sending the t&cs that referred to my account at set up ?? Rather than at cancellation ?

Can someone advise on this ?

 

Thirdly, have others had such letters from Link ? And how does this normally pan out ?

 

And one last thing - Link failed to respond to my request for S78 within the Statutory Time of 12+2. They should have responded start December. Is there any action or complaint I take, despite them responding to my 2nd request ?

 

Thanks...

Well you can report them to the OFT if you wish.

[HP Mum]

Thanks,

So, if they "unlawfully rescinded", where does that leave me and the debt, Mbna and Link ??