Amber -v- MBNA

[amber]

Hi Everybody

 

I'm after some help and advice please regarding the MBNA. In the space of the last year alone, they have increased my APR twice. Firstly from 17.9% to 26.5% and finally from 26.5% to 34.9% APR. This final increase has absolutely crippled me. I have had this account for 9yrs or so and never defaulted once. Always paid the minumum balance every month on time via direct debit. Sometimes I made additional payments (when I could afford to do so) through their online banking system, in order to reduce my bill further. I telephoned MBNA about this increase and asked them to put it back down to the 26.5% APR. They resolutely refused and said that there was nothing they could do to help. They said it was my own fault for not returning the 'opt out' form in time. Working overtime most weekends in May, when I did come home and sort my post out,I had missed the deadline.

 

Between then and now I have been using savings to pay these creditors and the core household bills. Now I was faced with a crossroads, pay my mortgage or pay these lot. I rang up CCCS and got some sound advice and cancelled all my direct debits to all the creditors and we have signed up to a joint debt remedy plan with the CCCS to start in December.

 

Many moons ago (as you can see - I first registered with CAG in 2006) I had given thought to claiming back my bank charges but I never quite got round to it and when the whole Bank Charges case got put on hold, I just never bothered because of this. So it is current circumstance that has brought me back here. My credit limit at the moment is around the £9k mark (watch this space before it zooms up with all the charges they'll add on).

 

I decided to get the ball rolling by sending in a SAR request with a £10 cheque in August. In reply to this letter (& cheque cashed in), someone must have got confused at their end, because they sent me a copy of my Credit Card Agreement. Which was nice of them.

Having analysed this CCA, I've been really peeved to say the least. I 'discovered' that the Payment Protection 'Yes' box had been ticked

when I KNOW I would never have ticked it. There are two issues with this PPC alone. Those being a) its ticked and I never ticked it (the tick is the wrong way round, I am left handed and sign my ticks, well, the way lefties do their ticks) and b) I was self-employed at the time I took the card out (I had my own limited company at the time) so I don't think I would have been eligble anyway. I have attached copies of the agreement in my post below. All they sent me was this (looks like the tear off bit off the form I would have filled in). It is a photocopy. They did not send me the terms and conditions from back then, what they did send me was a copy of their up-to-date terms and conditions and a patronising question and answer sheet.

 

I would like some advice if this is un-enforceable? I have looked at some of the threads here and the one with copies of CCA's on, but I cannot find one exactly the same as mine.

 

Still perplexed, I decided to ring MBNA and got put through to the department that deals with the Payment Protection Cover. I spoke to a lady who looked at my account and she informed me that there is no PPC on my account, that I had never paid it at all and that there is a note there that states I rang up and cancelled it 2 days after I had opened the account, so theres nothing to worry about. I was relieved to hear this information and ended the call. I thought that was that. Then I telephoned them again and spoke to a customer service representative and explained that I had sent in a request for a Subject Access Request but someone must have got confused because you sent me a copy of my CCA instead. They apologised and said they would put a note on file for the customer advocacy department to deal with and that they would get all statements and documents over to me as soon as possible.

 

Today I received the SAR along with a letter - "as requested, please find a copy of your past 6yrs statement transactions". I opened the account in April 2001. They have only sent me transactions starting from September 2003 till date. Just for the past 6yrs not the 9yrs I was hoping for. So I start to read through the transaction lists they have sent me starting from (September 2003 till date) and I immediately notice, starting in the September 2003, that they have been charging me for Payment Protection Cover, around £50 per month. I continue with scrutiny and discover that the Payment Protection Cover suddenly stops appearing to be taken out, in January 2006.

 

SO - what to do about that one? Clearly what the lady on the phone in the Payment Protection Cover department told me was a pack of lies because I now have it in black and white in front of me that payments had been made for 3yrs.

 

Where to start first? Do I have the grounds for separate claims here? PPC claim? Credit card fees claim? What about the Agreement - is this enforceable? They have my signature and date signed by me, the header on the form is this: Credit Agreement Regulated By The Consumer Credit Act 1974 (does not mention credit card in that line at all). Last but not least - am I able to pursue these claims whilst being on a joint debt management plan with CCCS? Whereby at the moment, we are making plans to make token payments to each creditor starting in December. Should I halt making any kind of 'token payments' until I get some answers???

 

PS I worked for MNBA a long time ago when they first came to Chester, I worked in a section called Auto-CLI's (Automatic Credit Line Increases) this was actually within the credit section - you wouldn't believe half of the phonecalls I overheard, it was truely shocking to say the least.

Edited October 15, 2009 by amber
Further clarity needed - I went off on a tangent.

[amber]

I would just like to add that when I worked there all new applications where keyed in and set up and then kept in several boxes (old printer paper boxes) for six months before filing away. When the 6 months where up, they where passed to us, whereby we 'updated' each account with an automatic credit line increase (no mention of this to the customer, no consulation, all automatically done) based on a percentage of the initial offer and the customers salary combined!

[amber]

Bumping this.. Can nobody offer any help or advise? So many views....

 

Also, I think I may be onto something here. I've been thinking hard about the time when I used to work there (about 13yrs ago now, I was a 'temp' for 10 months) BUT recalling those applications we had to update, it was just boxes and boxes of JUST the tear off bits at the bottom of the application. There where hundreds of them stored in these old printer paper boxes that we had to get through every day (we had targets to meet) BUT thats ALL that was there.

 

I am absolutely sure, that at that moment in time, MBNA discarded the rest of the document except for the tear off sheet which was kept with the customers signature on. THIS is why they CANNOT provide accurate T&C's. BECAUSE they threw them away, they never kept them. Their practices may have changed (and probably have) since that time but in 1996 this certainly was not the case.

[vint1954]

They need to fulfill your SAR back to the time of you opening the account not just 6 years. They are required to keep these documents for 6 years past the closeure of the account, not least for money laundering legislation. It is a mistake that they often make. You need to insist that they fulfill your request back to the accounts inception.

 

To get an opinion on your agreement, you will need to post it on this thread, minus your personal details.

 

If there is no term within the signed document to vary the agreement, then they are acting unlawfully in raising the interest rate.

 

Obviously you did not have an MBNA card when you worked for them?

[amber]

No, I did not have a card when I worked for them. I would not have qualified for one as I was earning peanuts.

 

Thanks for your reply Vint. I appreciate it. I've been reading through the other threads also, very imformative. I just don't know where to start with my case/cases.

 

In the meantime, I'll scan said CCA documents and post them up for you to take a look at.

[amber]

Still trying to attach docs but they keep posting as thumbnails?

Edited October 14, 2009 by amber
Mistakes with the uploads.

[amber]

Will post the uploaded documents correctly later, when hubby gets home.

 

Can anybody point me to a template I could use to insist they fulfill my Subject Access Request back to the time of the accounts inceception/of me opening the account in 2001 and not just for the past 6 years. (As per Vints post above)? Thanks.

Edited October 14, 2009 by amber
spelling mistakes

[vint1954]

If the bank fails to supply you with your data then you should complain to the bank. Give them 7 days to comply and tell them that you will begin a complaint to the Information Commissioner and also that you will begin a County Court action under the Data Protection Act.

 

Have a look here.

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/110--data-protection-act-1998-subject-access-request-

[amber]

CA Attachments (Front-CA1 and Back-CA2 )

ca1.doc

ca2.doc

[amber]

Can anybody help me here regarding the copies of the Credit Card Agreement documents (front and back) that I have posted up and tell me if they think they deem to be unenforceable? I've had a look at the thread with several copies of different CCA's in but I cannot find one that resembles mine. Mine was taken out in April 2001. Thanks.

[usaname]

Hi,

 

Just a couple of things that may be of interest to you.

 

Firstly you said in your original post that you had your own Limited company at the time you took the card out. If this was the case then you were not self employed, you would have been a director of the company. Nevertheless you would have been an employee of the Co and so eligible for PPI - unless the T&Cs stipulate that Directors are not allowed.

 

Secondly, and with regard to the CCA that you have been supplied. The complete terms & conditions must be on the same document. On the CA2.doc, top of column 2 ( starts "Set out in paragraphs 1-15 below...") they admit that they are on a separate document ("... The other conditions referred to in these paragraphs and the applicable definitions can be found in those Terms & Conditions").

 

I'm not so sure that the two documents you've been supplied with belong together, either. The front, under the Data Protection asks you to read section 11 of the T&Cs. Turn over read section 11 and it refers to interest rates on Cash, Cheque and Balance Transfer transactions - nothing to do with Data Protection.

 

In my opinion, the CCA is unenforceable. This is the exact same premise that I am arguing with my dispute.

[vint1954]

Can anybody help me here regarding the copies of the Credit Card Agreement documents (front and back) that I have posted up and tell me if they think they deem to be unenforceable? I've had a look at the thread with several copies of different CCA's in but I cannot find one that resembles mine. Mine was taken out in April 2001. Thanks.

Sorry amber, got side tracked.

 

There is no mention of an apr in the body of the text, just in the example box.

 

Strange that the tear stayed exactly in place when the document was archived.

 

Chances of them having the original, 10% Knowing that, Priceless.

[vint1954]

Hi,

 

Just a couple of things that may be of interest to you.

 

Firstly you said in your original post that you had your own Limited company at the time you took the card out. If this was the case then you were not self employed, you would have been a director of the company. Nevertheless you would have been an employee of the Co and so eligible for PPI - unless the T&Cs stipulate that Directors are not allowed.

 

Secondly, and with regard to the CCA that you have been supplied. The complete terms & conditions must be on the same document. On the CA2.doc, top of column 2 ( starts "Set out in paragraphs 1-15 below...") they admit that they are on a separate document ("... The other conditions referred to in these paragraphs and the applicable definitions can be found in those Terms & Conditions").

 

Only the prescribed terms need to be within the signature document. It is my opinion that they need to come before the signature.

 

I'm not so sure that the two documents you've been supplied with belong together, either. The front, under the Data Protection asks you to read section 11 of the T&Cs. Turn over read section 11 and it refers to interest rates on Cash, Cheque and Balance Transfer transactions - nothing to do with Data Protection.

 

Section 11 gets a lot of MBNA agreements in trouble. They do not check what they are reconstructing.

 

In my opinion, the CCA is unenforceable. This is the exact same premise that I am arguing with my dispute.

I would go along with tha. They would need the original in court.

[amber]

Thanks Guys

 

Usaname - I must of been having a bit of a blank moment there - of course you are correct, I was a director of my own Ltd Company. Thanks for your notes regarding this. Still what to do next? How to prove that I never ticked the box? Is there a template (have the list, can't figure out which one to use) to use to take this claim further/dispute it?

 

Vint - I thought that too regarding the small tears in the top left hand corner of the CCA document, looks ever so fragile and would have easily come away over the years. (If you look, the 'tear' certainly seems to be in the same place, front and back?) It seems to me, that this is a microfiched copy. The comment regarding Section 11 has me perplexed too as you both quite rightly say, when you turn it over and look at it - it refers to interest rates not DPA.

 

I'm going to post up a letter now that I want to send to them today regarding my original SAR request for all 9yrs, not just the 6yrs. Can you guys please take a look and point out any amendments I may have to make before I get it in the post today?

Thanks again.

Edited November 12, 2009 by amber
.

[amber]

MBNA Europe Bank Ltd

Customer Advocate Office

Stansfield House

Chester Business Park

CHESTER

Cheshire

CH4 9WW

 

16th October 2009

 

Data Protection Act 1998

Subject Access Request

 

 

Dear Sir/Madam

 

 

Account Number: XXXX XXXX XXXX XXXX

 

Thank you for your letter dated XX October 2009 in response to my Subject Access Request.

 

I consider this data incomplete and I ask you again to comply with my initial request. Here it is again if it has been mislaid or open to misinterpretation.

 

Please supply me with copies of all the data which you hold on me in relation to any matter and in any form and for any period of time.

Please note that I require disclosure of any personal data which you hold on me for the entire period of my dealings with you from April 2001.

The Subject Access is not limited to my transaction history and it is not limited merely to 6 years of historical information. Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other 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 banking business with you.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

I enclose the statutory maximum fee of £10. (Again) You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties or charges which are invalid under the Unfair Terms in Consumer Contracts Regulations against me, then I shall be reclaiming them together with any interest charges which you have levied on them.

As it is your wrongdoing and mishandling of my account which has created the necessity for this Subject Access Request, I shall also be reclaiming the enclosed £10 DPA Subject Access Request Fee.

 

I must insist that you comply with this request subject to the account opening inception in April 2001.

 

I also point out that the 40 days request from the initial Subject Access Request is still running.

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,

[amber]

Great - just recieved a default notice from Egg in the post. Barstewards.

[vint1954]

Thanks Guys

 

Usaname - I must of been having a bit of a blank moment there - of course you are correct, I was a director of my own Ltd Company. Thanks for your notes regarding this. Still what to do next? How to prove that I never ticked the box? Is there a template (have the list, can't figure out which one to use) to use to take this PPA claim further/dispute it?

 

Vint - I thought that too regarding the small tears in the top left hand corner of the CCA document, looks ever so fragile and would have easily come away over the years. (If you look, the 'tear' certainly seems to be in the same place, front and back?) It seems to me, that this is a microfiched copy. The comment regarding Section 11 has me perplexed too as you both quite rightly say, when you turn it over and look at it - it refers to interest rates not DPA.

 

Or an elaborate reconstruction to make you think it is an archived copy:D

If section 11 does not correspond to the notaion on the front, then it is definitely a reconstruction. Photcopy front from microfiched copy, photocopy any old rear page, tear in the corner, then photocopy again to convince you it is real.

 

I'm going to post up a letter now that I want to send to them today regarding my original SAR request for all 9yrs, not just the 6yrs. Can you guys please take a look and point out any amendments I may have to make before I get it in the post today?

Thanks again.

Vint

[vint1954]

Great - just recieved a default notice from Egg in the post. Barstewards.

Post it up.

[vint1954]

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxx xx

 

I write regarding recent and continuing communication regarding the above account. I acknowledge no dept to your organisation.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, 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, supplying only an application form devoid of all prescribed terms and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. 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.

 

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, cannot be a True Copy of an Executed Agreement.

 

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

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

Let me explain here, what a true copy is:

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

 

I am now granting to you a further 7 days to produce a copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I look forward to your response.

[amber]

Thanks Vint. So I send the letter above 'Account in Dispute' instead of the one I was going to post?

 

What do I insert here, in replace of the xxx's? "Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78."

[amber]

Egg default letter arrived today.

 

http://i788.photobucket.com/albums/yy169/amber_clm/EggDefaultPg10f2.jpg

 

http://i788.photobucket.com/albums/yy169/amber_clm/EggDefaultPg2of2.jpg

[vint1954]

Thanks Vint. So I send the letter above 'Account in Dispute' instead of the one I was going to post?

 

What do I insert here, in replace of the xxx's? "Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78."

MBNA

[amber]

Hmm, still confused. Should I send both letters (the 2nd SAR request because they only sent me 6yrs statements instead of 9yrs AND the Account in Dispute Letter)?

[vint1954]

Yes, 2 separate issues realy.

 

SAR to data controller

 

Dispute letter to usual suspects.

[usaname]

Hi,

 

Secondly, and with regard to the CCA that you have been supplied. The complete terms & conditions must be on the same document. On the CA2.doc, top of column 2 ( starts "Set out in paragraphs 1-15 below...") they admit that they are on a separate document ("... The other conditions referred to in these paragraphs and the applicable definitions can be found in those Terms & Conditions").

 

Only the prescribed terms need to be within the signature document. It is my opinion that they need to come before the signature.

 

CCA 1974

61.—(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.

 

As the "Terms & Conditions" are stated, not implied, I would argue that they constitute terms of the agreement and as such must comply with (b) above.

 

If they don't constitute as terms of the agreement, why do they exist and why, according to the alleged CCA that I have with MBNA, do they state that under the CCA 1974 they must provide them?

 

My argument is that the T&Cs do form part of the agreement and should, therefore, be within/on the same document, not in separate document nor provided after signing the agreement. Otherwise how do you know what you are agreeing to?

 

Counter arguments and opinions are welcome.