MBNA cant currently comply with CCA, what now?

[minmoo]

Hi all,

 

Short story, last month asked MBNA if they could reduce payment for 3 months while wife found a new job (was laid off). They had me phone twice before telling me no chance. Then had a letter few days later saying my account couldnt be used as facility was withdrawn even though at this point i have never missed a payment or gone over the limit.

So i missed decembers payment and will have to miss january too. Come the end of january i will hopefully be back up to speed but am going to struggle with the arrears massivley. So i sent a CCA request and to be fair, after 20 days recieved the letter below. What does everyone make of it? (details removed).

 

What is the best course of action now? The account was not originally an MBNA one and the way they treated me the first time i asked for help is terrible. I dont care about the credit rating only losing my house. They have just started phoning but am ignoring. They only have my mobile. Any advice would be really helpful. I imagine they could pop up with the agreement at any time.

 

Thank you folks. Merry xmas (!)

 

[rebel11]

Hi Min

 

The debt doesn't disappear. But is unenforceable until they can produce the requested documents.

 

Send this Recorded Delivery. http://www.consumeractiongroup.co.uk/forum/content.php?436-Failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

 

Also have a read of this, theres a Plain English Guide Part 2. http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

 

If the account was with a different creditor, it's difficult to 'Reconstruct'.

[minmoo]

Hi Min

 

The debt doesn't disappear. But is unenforceable until they can produce the requested documents.

 

Send this Recorded Delivery. http://www.consumeractiongroup.co.uk/forum/content.php?436-Failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

 

Also have a read of this, theres a Plain English Guide Part 2. http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

 

If the account was with a different creditor, it's difficult to 'Reconstruct'.

 

 

Thanks for the reply rebel, i understand the money is still owed. It was never my intention not to pay my debts but i am unsure what to do next. Ideally i would like to come to some sort of agreement where i can catch up but i dont know if i should contact them about this or not. The arrears come the end of january will be more than i can afford over a few months. I can resume normal payments then but they are only going to keep adding default sums. I have read on these boards they are more likely to negotiate after you start missing payments. Should i wait (after sending the letter you suggest of course)?

[rebel11]

The fact that it's Unenforceable gives you leaverage to make a Full and Final Settlement. But you need to be very, very careful with F & F Settlements, read up on them, ask the guys here. Start with a low amount and try to find an amount that you can afford.

[victoria_siempre]

Hi minmoo

 

A poor person moves slowly.

 

love

 

vic

[minmoo]

Hi minmoo

 

A poor person moves slowly.

 

love

 

vic

 

 

Vic, i am laughing and i dont even know why!!!

[victoria_siempre]

Sometimes it's a blessing to be poor, minmoo

 

x

 

v

Edited December 23, 2010 by victoria_siempre
typo

[minmoo]

Hi Min

 

The debt doesn't disappear. But is unenforceable until they can produce the requested documents.

 

Send this Recorded Delivery. http://www.consumeractiongroup.co.uk/forum/content.php?436-Failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

 

Also have a read of this, theres a Plain English Guide Part 2. http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

 

If the account was with a different creditor, it's difficult to 'Reconstruct'.

 

 

Okay then, am sending the dispute letter but am unsure of a couple of things (i have read the plain english version but still a bit stuck).

 

Should i be making payments of any kind while it is in dispute? I have read other threads but their seems to be a difference of opinion on that. What is the thinking on me getting in touch with them and asking to freeze the interest and accept slightly lower payments? Maybe i should just be sitting tight and doing nothing. Its all so bewildering!

 

Any advice would be appreciated, thanks guys and happy new year

[rebel11]

It really is up to you, which way you want to proceed. If your disputing the account, the account is unenforceable, and at some point you wish to make a full and final settlement offer, then I would be reluctant to make any payment. The problem with making a payment is that you start to sending mix messages.

 

You can ask them to freeze the interest with reduced payments, then where does the full and final settlement come into the equation?, also why are you disputing the

account? You need a clear strategy, don't change horses halfway around the course.

 

I want you to do what you feel comfortable doing, it's about you gaining control of the situation.

 

Okay then, am sending the dispute letter but am unsure of a couple of things (i have read the plain english version but still a bit stuck).

 

Should i be making payments of any kind while it is in dispute? I have read other threads but their seems to be a difference of opinion on that. What is the thinking on me getting in touch with them and asking to freeze the interest and accept slightly lower payments? Maybe i should just be sitting tight and doing nothing. Its all so bewildering!

 

Any advice would be appreciated, thanks guys and happy new year

[minmoo]

It really is up to you, which way you want to proceed. If your disputing the account, the account is unenforceable, and at some point you wish to make a full and final settlement offer, then I would be reluctant to make any payment. The problem with making a payment is that you start to sending mix messages.

 

You can ask them to freeze the interest with reduced payments, then where does the full and final settlement come into the equation?, also why are you disputing the

account? You need a clear strategy, don't change horses halfway around the course.

 

I want you to do what you feel comfortable doing, it's about you gaining control of the situation.

 

I guess i am like a lot of people on this forum. We mostly know we have used the cards over the years and cant pretend we havent but when it comes to just wanting a little help they refuse and throw the heavy handed tactics in.This gets your back up.They have had the balance many times over. In an ideal world they would have accepted lower payments for a few months and i could have got myself together but they wouldnt allow that. So now i have to consider whats best for me and my family.

I have read that if it ever goes to court then it helps if you have made efforts with token payments but on the flip side, by doing nothing then they may come in with a reduced payment offer to close the account and get rid of you. I am happy to do that if i dont get a charge over my house. That is the biggest risk for me (as well as a lot of other people i guess). A ruined credit file means nothing any more. I am past it. For the first time this year we had a cash only xmas and it felt great. If we couldnt afford it then we didnt have it. I have learned some serious lessons from getting into this mess.

Its all so mind bending lol.

[rebel11]

Hi minmoo

 

It might be an idea to google, 'how to stop a charging order', in the event they attempt to.

[minmoo]

Right then, after a good chat with OH, we have decided to let this run and put aside the money i was paying in the hope that a settlement offer comes my way. After reading up on charging orders they cant apply without the CCA i think so will have to play it one bit at a time. They have more than had the balance from me over the years and have just hiked my apr up stupidly recently without any reason. I need to put my guilty feelings on the back burner and just look at how they have been treating me!

Thanks for your advice Rebel, it really is appreciated.

[rebel11]

Hi Minmoo

 

Try to think a couple of steps ahead, don't leave anything to the last minute.

 

Heres some more info, on charging orders, :-

 

How can I stop a charging order?

 

The court must consider whether it is reasonable to make a charging order. Under The Charging Orders Act 1979 the court has to consider all the circumstances of the case and in particular

• the personal circumstances of the debtor
  
• whether any other creditor would be "unduly prejudiced". The court has to decide if making a charging order would disadvantage other creditors
  

The arguments you can use against the order being made will vary depending on your circumstances, whether you have equity in your house, and whether you own your home in joint names or on your own.

Some of the factors a court may consider

 

• Whether any member of your family has a disability or serious illness.
  
• Where you have a number of debts, whether making a charging order in favour of one creditor would give them unfair priority over other unsecured creditors. It is particularly useful if you can show you already have a payment arrangement in place with your other creditors. This would be affected by a different arrangement being made.
  
• Whether there are any other creditors who might object to the order being made. The charging order nisi should be sent to all your other creditors. If they have not been informed of the hearing you can ask for the application to be dismissed or at least adjourned to allow creditors to be notified and make an objection if they wish.
  
• If the debt is small you can argue it would be unfair to make a charging order on your home if it is worth a lot in comparison. This is based on a case called Robinson v Bailey.
  
• Whether the creditor could have given you a secured loan when you first took out the loan. If they decided to give you an unsecured loan instead, this could be particularly relevant if you have other unsecured creditors who may be disadvantaged by a charging order being made.
  
• Whether there are other ways the court could enforce payment of the debt. You could ask the court to make an instalment order or an attachment of earnings order so that the instalments would come directly from your wages. This only applies if you are employed and your employment would not be at risk.
  
• If you owe less than £5000 in total to all your creditors you can argue that the debt should be included in an administration order rather than the charging order being made absolute.
  
• If you are likely to be made bankrupt you can argue that a charging order would give the creditor an unfair advantage over other unsecured creditors.
  
• If your home is not worth as much as your mortgage (also known as "negative equity") then you can argue it is not worth a charging order being made as the creditor would not be paid off even if they forced your home to be sold.
  
• You should point out any particular hardship which your family would suffer if a charging order was to lead to the sale of the home. This is particularly important if the debt is not in joint names, as it is not then your partner’s debt.
  

If none of your arguments are successful and the court makes a charging order absolute you can still ask them not to allow your house to be sold as long as you pay monthly instalments.

[the_shadow]

At present you have a binding document from the creditor confirming they wont take you to court, without taking you to court they cannot obtain a ccj, without a ccj no charging order.

 

S.

[minmoo]

Thanks for the info Rebel, it is interesting reading.

 

Shadow, i reckon at some point in the future they will pop up with a 'reconstructed' agreement and at that point i will panic! I have decided to set aside the money i would be paying in the hope of saving enough to go toward any potential settlement they might offer should they not. Its a risky game but so be it. At the moment i am only getting two calls a day but i havent bothered answering as they wont be interested that the account is in dispute. I will most likely be back for advice as and when this hots up, i literally wake up in the night sweating over what might happen! Thanks again to all concerned, its an amazing thing that people take time out to help others.

[rebel11]

Has the interest on the agreement every been 'varied' i.e. increased? If so at the very bottom of the page, Summary point (4) should apply.

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

[minmoo]

Yes, if i remember correctly (it was a long time ago) i think the original apr was about 12-15% and is now closer to 30. And that is with having a perfect credit score and never missed any payments on anything!

 

My address on the original agreement would be different as well, i notice it mentions that in one of the summaries.

[rebel11]

Yes, if i remember correctly (it was a long time ago) i think the original apr was about 12-15% and is now closer to 30. And that is with having a perfect credit score and never missed any payments on anything!

 

Interest rates being at an all time low and they increase them.

[minmoo]

Interest rates being at an all time low and they increase them.

 

Dont get me started on that!

[minmoo]

So the dispute letter was sent and a response (if any) is awaited.

 

My next question is, can anyone guide me on how to negotiate with them? I am hoping my position is strengthened by the fact they havent got a CCA. So far i have ignored phone calls.

 

For example, either getting them to cancel interest and allow me to pay the balance over the five years they 'apparently' allow in some cases

 

or

 

by getting a F&F.

 

Do i talk on the phone or do i write a letter? Do i do nothing until they default me?

 

Sorry for so many questions, thanks

[leopard lady]

Hi Minmoo I am in a very similar situation with MBNA and if you read my thread it may help you decide how to communicate with them. On both my calls they lied through their teeth, however they refuse to respond to written communication. I have just (8.15am) had a call to my home and mobile and get these throughout the day, had it new years day morning. Like you my situation is making me ill, I'm getting 2-4 hrs max sleep a night. I have today posted a complaint to customer advocate office citing the OFT ruling which came in force on 1/10/2011 stating that they should give customers details in writing of any agreements, and be sympathetic with customers in financial hardship, but I'm not sure it will make any difference, all my other letters have gone there and they didn't reply!!! I'll keep my thread updated when I get a response, and will look forward to reading your thread, the mutual support on here helps a lot.

[minmoo]

Hi Leopardlady, thanks for your comments. It certainly does give strength to talk to people in a similar position . It looks like we are on similar timescales so i will keep an eye on your thread also.

So i have read your thread and can see you have been mucked about. I think Silverfoxs comment at the end were very useful. I am hoping that after a few payments have been missed they will start to negotiate. In my case they admit they have no agreement so i am hoping they will come to an arrangement. (i would be happy to pay it all off if they would just freeze the interest!). I havent answered any calls yet but i may respond to one just to say the account is in dispute and am awaiting a proposal to sort it out.

Did they have your agreement? I couldnt see if you did in your threads.

[leopard lady]

I have not done that yet as I thought that it might hamper the arrangement ha ha!!!! I was under the impression that it didn't matter anymore and they didn't need the original agreement? Maybe I should be doing it.

[minmoo]

Oh well, i had a nice letter from Martin Supple today. It didnt address the dispute at all but simply told me i should make a payment now.

And then a phone call, i thought i would break my duck by answering. It went like this:

 

him: hello, i am calling from mbna, can i ask you to confirm some security details please?

 

me: no, sorry , dont hand out my details to just anyone who calls.

 

him: but i am authorised, if you give me just two letters from your mothers maiden name then i....

 

me: no, wont happen sorry, you could be anybody.

 

him: But we need to discuss some things with you and i cant until you answer the security details.

 

me: Thats a shame, you could write me a letter, i prefer that.

 

him: We have but you have not replied.

 

me: well i have had a letter today from martin supple, can i speak to martin supple?

 

him: no he is not here at the moment.

 

me: can i ask when he will be in and arrange to speak to him please?

 

him: no i cant, he works for a different department, i work in customer services.

 

me: well thats good because on the letter he says he is Head Of Customer Services?

 

him: panic, fluster, panic. Please can i take some security details please?

 

me: Well, can i take yours first?

 

him: Yes, any details you like, no problem.

 

me: Name?

 

him: R.S, would you like my employee number?

 

me: Oooh, yes please. Can i have your home address and phone number also.

 

him: i cant give you those, i am in India

 

me: So you were lying when you said martin supple was out of the office? How can i trust you now?

 

him: panic, fluster. But i can assure you i work for mbna

 

me: But i can assure you i am the pope, do you believe me?

 

him:SHOUTING: this is stupid, i am putting a note on your file and we will keep calling until this is resolved.

 

me: excellent, i dont have many people to talk to these days, not since that incident with my auntie jean. I just hope i am forgiven one day.

 

PHONE SLAMS DOWN.

 

I know i shouldnt, but i enjoyed that. I reallty would like to speak to martin supple though, anyone know if he exists for real.

[leopard lady]

In the words of the inimitable Dick Emery

 

"OOOO you are awful -------- but I like it (lol)!!!!