Link Financial and MBNA Card debt

[HP Mum]

Link wrote and said they had requested copy of Agreement from Mbna and most recent t&cs. That was 1 month ago.

I have had nothing back in writing from them.

But.... they have started calling from 02920 853500 ... and not leaving a message. (I did a check to see who was calling). This has happened 5 times, even just before 8pm on Sunday night... Despite also warning them pursuant to S127 of Communications Act 2003 I would only accept communication in writing, never telephone calls.....

Anyone any ideas why they would be calling me, rather than writing with the results of their mbna enquiry ???

[gezwee]

Anyone any ideas why they would be calling me, rather than writing with the results of their mbna enquiry ???

 

Because they're thick as 2 short planks......

 

In all honesty most of the DCA'S will rely on Mcguffick ruling to continue pestering the life out of you, doesnt make it right but I suppose even they need to hold on to some hope of not being sanctioned by the OFT.

 

They'll still look foolish without the original agreement if called for under CPR should they wish to proceed to litigation.

 

I have difficulty in corresponding with any DCA without a notice of assignment, as far as I and the law are concerned there cannot be demands for monies without evidence that any are due and owing. You would think it prudent for a DCA to ensure they purchase all data on assignment not just a set of figures with a name and address.

 

After taking some other views of this on board from the likes of diddydicky and others I do however now send the following notice (amended to suit) to the OC. So far Cap1 and Amex have bought the accounts back and thus far things have gone very quiet ..................

 

Gez

 

 

Dear Sirs

 

Re: Account #................................ Unlawful Rescission.

 

With reference to the alleged debt to your company, I refer to your Default Notice dated ................, posted second class and received by me on ......................, together with your subsequent actions confirming your previous written intentions to terminate the agreement and additionally disposing of the account to a third party prior to the rectification date.

 

Notwithstanding that the default notice failed to correctly communicate the true arrears value or give me the required statutory time in which to seek legal advice and/or remedy any alleged defect as prescribed in s87 of the CCA 1974, your actions have resulted in insufficient time for me to obtain an appointment with a solicitor or remedy the alleged default. Your subsequent actions (now recently disclosed to me), lead to you unlawfully rescinding the agreement.

 

I accept your unlawful rescission of the agreement and in doing so I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and I would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission.

 

Take notice that I hereby reject any subsequent unilateral offers to re-instate the agreement or indeed to instate a new agreement at any time in the future.

 

As you have recently confirmed that a Notice of Assignment was not issued and in order for any alleged third party assignee to mitigate their costs I would think it prudent at this time for you to inform them of your failure to adhere to the act, allowing them the opportunity to invoke any insured put-back option that you may be contractually obliged to.

 

I look forward to hearing your excuses.....

 

Up Yours etc etc..........

[johnerog]

Link wrote and said they had requested copy of Agreement from Mbna and most recent t&cs. That was 1 month ago.

I have had nothing back in writing from them.

But.... they have started calling from 02920 853500 ... and not leaving a message. (I did a check to see who was calling). This has happened 5 times, even just before 8pm on Sunday night... Despite also warning them pursuant to S127 of Communications Act 2003 I would only accept communication in writing, never telephone calls.....

Anyone any ideas why they would be calling me, rather than writing with the results of their mbna enquiry ???

 

Hi HP

Collecting money from people is all about pressure. These people are vultures who make money from the misfortune of others. Its very difficult to stop but you have to try not to get upset. When I get calls these days I just reverse tactics, I refuse to answer security questions until they can prove who they are; and they can't, and I tell them the call is being recorded for report to the Trading Standards office. Often the line just goes dead.

[HP Mum]

Link have tried calling 4 more times last night and all today. On another occasion I picked up and said nothing. There was a chatty man asking to speak to me using my first name, speaking as in a manner that might make me believe he was a friend. As I did not recognise the voice I stayed silent. He then put me on to their music ! At that point I hung up.

 

Thanks GW. I am still waiting for Link/mbna to reply with the necessary info requested. I think I will wait a bit longer. In simple language though, by sending such a letter to them, what is the expected reply from mbna ???

[HP Mum]

Hello again,

 

I am perplexed.

 

Firstly I have logged 10 attempted calls from Link in the last week.

 

Exactly 6 weeks ago Link sent me a letter:

"You have recently made a request under Sect 77/78 for copies of various docs.

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

 

I have had nothing in the post in the last 6 weeks. Just suddenly a flurry of calls (not answered) in the last week.

 

Then today I got this letter from Link:

 

"Ths letter is final notification that any agreement you had with Link to repay your dent has been cancelled for non-payment.

Without further reference to you we will immediately commence recovery of the full sum £xx (a disputed amount with mbna) by one of the following options. You will be held liable for any and all of our costs associated with collection:

1. your data will be passed to our internal asset investigation department

2. your account will be approved for recovery by way of a judgment secured in your local county court

3. this debt will be transferred to an external fee charging Debt Collecting Agent who may call at [you] their typo home

 

We are extremely disappointed that we have not been able to resolve this [amicable] their typo with you. As always out team of Account Offices remain available to take your call on xx should you wish to discuss this matter.

 

I have a migraine. I am very tired and need to sleep now.

But what the heck are they playing at ????????

They were supposed to be sending me docs from mbna.

Should I be worried about a Claim form coming through the door?

Or is this designed to scare me because they know that either mbna docs are lost, unenforceable, unlawfully signed over to Link before the due date etc etc. Ie they do not have a chance in enforcing it but they are scaring me into thinking they do....

 

How on earth do I reply to this blatant ignorance.

And also the fact of the 10 calls. Now a criminal offence.

And an incorrect balance.

The miss-spelling in their doc is incredible.

 

Please help.

[gezwee]

Hi HP

 

In all honesty they may bounce it back to the OC or sell it on orrrrrrrr attempt filing a claim.......not sure who Link use tbh, if it gets bumped to MBNA it'll be Optima filing the blue form.

 

You've asked for details and they've rejected your offer to resolve so theres little more you can do at the mo.

 

If they file you'll need to defend and the more obstructive they become the better your position.

 

So far you have a S.78 non complaincy and an unlawful rescission, just keep all paperwork they send and any envelopes (date receipt of each) and wait for the next chancer to call you up.

 

Keep an eye on this thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/224276-diskmandave-moorcroft-legal-against-7.html by DMD to see how things pan out as well.

 

 

Gez

[HP Mum]

Hi Gezwee,

Well, they haven't rejected my offer to resolve,as such.

They said they would get the docs from Mbna within 30 days and revert back to me. Instead they have sent me the above angry letter.

 

I have made a formal S.78 request, a reminder,and now, end Feb, they have said they are cancelling any agreement I had with them.

 

My thought is to copy all 4 letters to them:

My Original S78 request

My reminder S78 request

Link letter to me saying they will get docs

Link angry letter to me cancelling any agreement we had.

 

I suspect they know the agreement is unenforceable and they bought a debt they were not entitled too.

 

Can anyone advise what is the best action to take ????

[HP Mum]

HI

I have sat and drafted the below. Does this sound ok ? Anything I should be adding ?

And should I now SAR mbna?

Or just sit and wait to see if Link do anything?

 

 

ACCOUNT IN DISPUTE

I am in receipt of your letter, dated xx/10, the contents of which have been noted.

However, I am perplexed by the threatening nature of the contents of your letter considering the alleged debt to MBNA is in dispute and you are in default.

For your information I have enclosed the following:

1. A copy of my formal request pursuant to S.78 of the Consumer Credit Act 1974 sent to Link, dated xx/09, by special delivery

2. A copy of my reminder letter, dated xx/2010, and formal notice that the account had entered default on xx/2009

3. A copy of the letter you sent me, dated xx/2010, advising that you had reverted back to MBNA for the documents I requested pursuant to the Consumer Credit Act ‘74, S.78.

4. A copy of the letter received today.

I will reiterate:

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.

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

You will also be aware of the Office of Fair Trading's guidelines on debt collection.

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.

I asked Link to consider my letter, dated xx/2010, as a Statutory Notice under S.10 of the Data Protection Act 1998. This meant Link had to cease processing any data in relation to this account - with immediate effect. This also meant 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, have provided 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?

Please note that in my letter to Link, dated xx/2010, I formally asked Link to communicate in writing and ONLY in writing; that telephone calls from Link would NOT be answered: I further advised 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.”

I would like to point out that Link has attempted 10 calls to me in the last week.

 

Any action taken against me will be vigourously defended/counterclaimed.....

[gezwee]

Looks fine to me, theres a couple of lines in there that may or may not be correct for s.78 now since Mcguffick.

 

I'm inclined to say that you should head this with 'I do not acknowledge any debt to your company or that of the company you imply representation of'

 

All things considered they'll probably ignore it anyway but its always best to have the last word

 

I'd certainly get a sar off to MBNA now as well, it may help you to see what exactly has been going on with your account and if there are any charges to recover.

 

Gez

[HP Mum]

what are the changes with McGuffick ? (is that a judge?)

 

Is there a thread on this that I could be reading ?

 

Which sentences do you, or anyone else, recommend I change now. I mean, the draft above is only repeating what I put in earlier letters.....

[gezwee]

Hi HP

 

Its this one.....

 

http://www.judiciary.gov.uk/docs/judgments_guidance/mcguffick-v-rbs.pdf

 

Worth a read, DCA's now tend to rely on it in chasing disputed debts.

 

Its the 1st and 4th lines in 'you may not' that they tend to carry on with. Tbh, I'd leave your letter as it is. If Link want to start quoting Mcguffick (which they do) you can remind them later that they'll still need an executed agreement if they want to try enforcing the debt.

 

Gez

[HP Mum]

hi

I was just about to post my letter to Link and lo and behold something from Link in the post:

2 pages.

covering page:

"Please find enclosed the docs you have requested from Link Financial. If you have any additional queries relating to this documentation please do not hesitate to contact us on ...

Where this request was made under Section 77 or 78 of the CCA 2006 this document fulfils our obligations"

 

All they have sent is a tiny photocopy printed front and back. There is a cut line at the top and underneath "signature form - sign and return today" There is one sentence which says "Please issue an mbna card to me".

It seems to be an application form not an agreement.

I will scan it up into photobucket in a mo. Would love some feedback on the image.

 

But that aside, I did a request under S78 CCA74, not 2006. I asked for a plethora of details, including statement of account, deed of assignment, etc. Do I write back to them and state they have not sent all the necessary docs. The important issue is that mbna sold them the debt before they should.

I am tomorrow going to send in my SAR to mbna.

Should I advise Link I have done this ?

[HP Mum]

 

 

 

I hope this works. It was only a photocopy so it was not very clear to start with.

 

Please help. Not sure what to do next.

[gezwee]

Hi HPM

 

Sorry, but I'm struggling to read any of the details on there. Was your copy legible?

 

Gez

[HP Mum]

hi

 

Firstly

Is this SAR ok to send to mbna ? Or have I missed anything out ?

 

Data Protection Act 1998 Subject Access Request

Please supply me with all data - not limited to my transaction history and not limited merely to 6 years of historical information - which you hold on me. This includes in particular, but is not limited to, the following:-

 

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

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

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

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

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

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

8. Copies of statements for the entire duration of the credit agreement.

9. 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 Aug 07)

 

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

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

 

 

 

Secondly,

 

re photocopy sheet they have sent - I can just about make out the type. I have typed some of it below. But my name is not on it. It could have come from anywhere !!

 

 

CCA74 t&cs

 

1a - we will choose your credit limit and will tell you what it is. we may vary it at any time and write to tell you.

1b - we will chosoe your first statement date We will then produce your statements about one month apart. If you ask we may change the statement date.

1c - by the payment due date shown on your statement each month, you mst pay:

- 2.25% of the balance shown on the statement (as long as this is at least £5) or

- the charges for Payment Protection cover, plus interest charged onthe statement and fees, plus £5 or

- the balance on the statement if this is less than £5

which ever is the least.

1d - The min payment you must make will be shown on your monthly statement. We my write to you allowing you to make a reduced monthly payment or we may give you a payment holiday. If we do that, we will continue to charge interest as normal. We will also not extend the period within which you need to pay if you want to avoid interest on any card purchases you made in the previous month

1e - we will charge interest on transactions as follows:

- any card purchase (except as mentioned at the end of the paragraph 1e) we will charge interest at 0.5614% each month. This would work out at 6.9%pa

- any balance transfers - we will charge interest at 0.5614% each month. This would work out at 6.9% pa

- any cheque transactions - we will charge interest at 0.5614% each month. This would work out at 6.9% pa

- and cash transactions - we will charge interest at 0.5614% each month. This would work out at 6.9%pa

In all cases we will then charge interest as shown in para 1g. We will not charge interest on the card purchases shown on your statement if you pay off the whole balance shown on your statement, and on the statement before, by the payment due date.

 

1f - we will charge a handling fee for all cash purchases. The handling fee will be 2% of the amount of each transaction and will be at least £2. There will be no maximum handling fee. We will charge an anuual handling fee of £0.

1g - This table shows how your annual percentage rate (APR) depends on the type of transaction, your handling fees and the credit limit.

table as photocopy...

 

ETC ETC

 

 

 

The signature sheet:

 

This has my name and address and my signature from April 05.

I didnt tick PPC.

I DID tick that I did NOT want them to contact me via phone and mail.

 

 

Important - Data Protection

Before signing this agreement you must read section 11 in the terms and conditions provided.

You agree that we may process, use, record and disclose your personal information as described in section 11.

We will use our automated credit scoring system when assessing your application.

**** does this mean this is the application form ?? ***

 

To protect against fraud and money laundering we may make searches and pass your info on to fraud prevention agencies and credit reference agencies. Both types of agency will keep your information and share it with other organisations who recover debt, manage or make decisions about credit and insurance for you and members of your household and to prevent money laundering. Information held by credit reference agencies may be linked to other people with whom you have financial associations. We may look at their records when assessing your application To improve the quality of our service we will monitor or record some telephone calls.

 

We may use personal info about you, including details of any transactions, on your account, to contact you about other products ......

blah

 

Please issue an mbna credit card to me, and if applicable,to the person I have named as an additional card holder.

**** please issue means surely that this is my application ?? ****

 

I understand that mbna reserves the right to issue a different type of card.

I confirm that the information given is true and complete.

I have received a copy of, and agree to be bound by, the mbna credit card t&cs, and I understand that I am responsible for paying any balance due on my credit card account.

 

Then I have signed and dated this bit.

 

 

 

PLEASE CAN SOMEONE ADVISE ??

Edited March 5, 2010 by HP Mum

[pumpytums]

Watch out for Stink they tend to issue first think latter. Your CCA is illegible no link front to back etc. I would hope if that was put infront of a judge they would get laughed out of court. I would send an account in dispute to them. Check out my MBN@ link the CCA is very similar.

 

Pumpytums

[HP Mum]

I sent a "perplexed" letter to Link today saying they have not provided all the info needed under the CCA request.

I'm not sure why they referred to CCA2006, when my request was made under CCA74. Anyone any explanation for this ?

My agreement was April 05.

As far as I can see the sheet they sent me is my application...

 

I finally sent the SAR to mbna too.

 

Do I just wait to see what happens next ? Or should I write and tell Link that I have sent a SAR to mbna ?

[gezwee]

I sent a "perplexed" letter to Link today saying they have not provided all the info needed under the CCA request.

I'm not sure why they referred to CCA2006, when my request was made under CCA74. Anyone any explanation for this ?

My agreement was April 05.

As far as I can see the sheet they sent me is my application...

 

I finally sent the SAR to mbna too.

 

Do I just wait to see what happens next ? Or should I write and tell Link that I have sent a SAR to mbna ?

 

 

Tbh, I wouldnt bother telling stink anything more than you already have.

 

You've made a lawful request under CCA1974 which they've failed to comply with, placing in dispute is the end of the matter until they provide an executed and compliant agreement complete with primary terms in a legible form. They'll ignore this and tell you the scrap of paper they've sent represents an enforceable agreement......thats their decision and one they must be able to convince a judge of if they bring proceedings with MBNA.

 

The decision is entirely yours but I'd be studiously ignoring stink now unless of course they can provide you with the agreement.

 

If you do at any time feeled obliged to pay any of the alleged debt then send the money to the OC, I make a point of never paying a DCA a bean even with enforceable debts.

 

Gez

[HP Mum]

I just had a reply from Link:

"Thank you for your recent complaint.

At this time we are unable to resolve your complaint but acknowledge receipt of it. Your complaint has been assigned to the Complaints Manager. Please find enclosed a copy of a summary of our Complaints Procedure. We will contact you within 4 weeks".

Hmmm.

So I have to wait 4 weeks for Link.

And in the meantime I have to wait 40 days for Mbna to reply to my SAR.

 

Anyone else had such a letter from Link? And any ideas on the potential response ?

[HP Mum]

If I sent my SAR on 5 Mar, when do mbna have to reply by ?

Is it 40 days, apx 12 April ? Or do they not include easter cos its holiday time ?

I guess the 4 week timeline for a response from Link maybe cos they know about the SAR to mbna ?? If mbna have to reply about 12th then 4 weeks from 19th is similar timezone !!

 

If mbna do not reply by the due date, what do I do next ?

[gezwee]

If I sent my SAR on 5 Mar, when do mbna have to reply by ?

Is it 40 days, apx 12 April ? Or do they not include easter cos its holiday time ?

I guess the 4 week timeline for a response from Link maybe cos they know about the SAR to mbna ?? If mbna have to reply about 12th then 4 weeks from 19th is similar timezone !!

 

If mbna do not reply by the due date, what do I do next ?

 

40 calendar days from receipt, no time benefit for national holidays or weekends.

 

If they don't comply within the time we'll cross that bridge when we come to it

 

Gez

[HP Mum]

Ok, so 40 days from receipt makes it that mbna have to respond to me by Friday 16 April.

I will keep you all updated then...

Thanks.

[HP Mum]

Morning, on a lovely sunny Saturday...

About to go away for a week's UK holiday and the postman arrived with my SAR info...

 

I have quickly scrolled down to find important bits on the Comms List:

 

- 31/12/08 - charge off code A

- 09/01/09 - it just says: "disclosure (email) sent 11/08

on 15/01/09 there seems to be lots of internal activity

- 15/01/09 - post rcvd passed to DRCI

- 15/01/09 - Logout case

- 15/01 - transfer case ; case amt 0.00

etc etc

- 20/01/09 -*** SOLD TO LINK.

- 20/01/09 - *** SOLD 19 JAN. Balance at sale was £ (too high disputed balance)

 

On a separate sheet it says:

08/01/09 - NOD sent 09/01/09 - Expires 26/01/09 Arrears £xx

 

 

SO...

What do I do now ?

 

1) It is clear that mbna sold the debt to LINK before the expiry date on 26/01/09

2) It is clear mbna did not send me the Default by registered post

3) Link did not send me Notice of Assignment by registered post.

 

I guess I am going to have to pack my printer into my suitcase if I want to deal with this

 

PLEASE HELP NOW...

[HP Mum]

ps - there is also a lovely letter, dated 15/03/10 from a Mr Sean Humphreys who is the "Director of Customer Satisfaction".

 

"thanks for getting in touch with us recently. We're pleased to enclose a copy of your most recent t&cs.

Don't forget some of the other fantastic features of your account:

Log on to....... You can check your balance and recent transactions, review your last 6 statements, set up a direct debit, pay your bills and much more. You can even go paperless!

We'd like to take this opportunity to thank you for your custom and we look forward to hearing from you soon"

hmmmm....

[HP Mum]

Hello

I'm not getting any feedback

I am obviously not writing with enough panic !!

 

Seriously - can anyone recommend a good "Unlawful Recission" template letter to now write to mbna ?