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Link Financial and MBNA Card debt


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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 ?

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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

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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,

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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...

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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.

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  • 5 weeks later...

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 ???

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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...... :p

 

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..........

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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.

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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 ???

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  • 2 weeks later...

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.

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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

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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 ????

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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.....

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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 :D

 

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

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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.....

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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

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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 ?

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