MBNA cant currently comply with CCA, what now?

[diddydicky]

Having been reading on a seperate thread about using CPUTR2008, i have seen a letter initially sent by fellow cagger stunned monkey. Can anyone see any harm in sending this to see what sort of response comes forth? I feel it may be worthwhile considering there is no cca as opposed to a reconstituted one. Its more a thought at the moment until anyone could offer some advice. Maybe the general rule is to do nothing. Here it is in full anyway, all comments appreciated (credit to stunned monkey):

 

MBNA

xxxx

xxxx

xxxxx

xxxxx

xxxxx

 

26/01/2011

 

Dear MBNA,

 

 

Re: Account xxxxxxxxxxx

 

Thank you for your letter of xx/xx/xx the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement (CCA) for the above account within the required 12 day time limit and as such the account entered default on xx/xx/xxxx.

 

I have since on the xx/xx/xxxx put the account in dispute and I do not acknowledge it as my responsibility.

 

Within your letter, I note with particular interest your claim that you are “entitled to carry out any actions which do not amount to enforcing the agreement including demanding payment, charging interest, transferring the debt to a third party, registering the debt with a credit reference agency and issuing a default notice”

 

Please cite the legislation that entitles you to taking these actions. It is not sufficient to simply state that you have a ‘legal right’. I note your reference the McGuffick v RBS case, citing that it maintains your right to register any default with the credit reference agencies even though the agreement is unenforceable.

 

You are wrong.

 

There is a difference between:

 

1) An unenforceable CCA (as in McGuffick’s case)

2) No CCA at all.

 

Due to the lack of a signed CCA, you may consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

I reserve the right to report your actions to any regulatory authorities as I see fit.You have 21 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hereby formally request that from your receipt of this letter, you contact me in writing only. I draw your attention to CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - 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'

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you

 

Yours Faithfully

 

 

 

If i am just wasting stamp money please let me know as i would rather not lol

 

 

 

the account did not "enter into default" by virtue of the creditor not complying with their s77/79 obligations

 

 

you cannot "put the account in dispute" nor cease to make payments on the strength of a failure of the creditor to comply with s77/79 (well, you CAN- so long as you understand that you are going to get your credit files trashed AND be in the wrong if and when you get in front of a judge.

 

a creditor who fails to comply with s77/79 is SIMPLY in breach of his s77/79 obligations and the only real sanction - is that he is prevented from enforcing the agreement whilst he continues to be in default

 

it will not prevent him demanding payments , charging interest, serving a DN and a termination or taking you to court (although he will not get a judgement)

 

the letter is with respect IMO crap!

[minmoo]

thanks for the reply DD, don't mess about will you lol.

i am searching so many threads trying to learn and i still don't know how to get mbna to listen to me.

 

No matter. I live in the hope that they don't come across a cca and offer me a f&f to get rid of me haha.

 

much respect to your honesty Another line of thought closed!

 

 

the account did not "enter into default" by virtue of the creditor not complying with their s77/79 obligations

 

 

you cannot "put the account in dispute" nor cease to make payments on the strength of a failure of the creditor to comply with s77/79 (well, you CAN- so long as you understand that you are going to get your credit files trashed AND be in the wrong if and when you get in front of a judge.

 

a creditor who fails to comply with s77/79 is SIMPLY in breach of his s77/79 obligations and the only real sanction - is that he is prevented from enforcing the agreement whilst he continues to be in default

 

it will not prevent him demanding payments , charging interest, serving a DN and a termination or taking you to court (although he will not get a judgement)

 

the letter is with respect IMO crap!

[diddydicky]

OK minimoo- ive just read through the thread and IMO you are going about this the wrong way. (not your fault- no one seems to have advised you correctly) so lets start again

 

The reason is that at 34% apr this debt is costing you an arm and a leg and it may well be that they have no legal basis for doing so - burying your head in the sand is not the answer- therefore you need to take the bull by the horns and face this matter head on

 

1/ if they are phoning on your land line don't change your number- they are good at getting XD numbers- splash out £70 on a truecall - that will stop all future calls

 

2/ Google cellphone Blackball and you will find cheap apps that you can download to your mobile which will allow you to create white and black lists on your mobile and stop them ringing you on your mobile

 

3/ send them the following letter

 

 

Dear Sirs,

 

 

Your Ref XXXXXXXXXXXXXXXX

 

 

I refer to your letter of XXXXXX in which in response to my s 78 request for a true copy of my credit agreement- you stated that you were unable to comply with your s78 obligations.

 

Kindly now comply with your s78 obligations, of which you have been in breach for several months .

 

Please note that in the event that the agreement has been varied your obligations extend to not only providing a copy of the agreement as varied- but - as confirmed by Judge Waksman in HSBC v Carey it must be accompanied by a true copy of the original agreement IN ITS ORIGINAL FORM .

 

You must also provide a signed statement of account and a copy of any other documents referred to in the agreement

 

Please note that ALL copies of documents provided under s78 must be "EASILY LEGIBLE " failing which you will not have complied with your obligations.

 

I refer also to CPUTR 2008 and if you are unable to provide a true copy of a properly executed agreement - then you must tell me why. If you do not have a properly executed credit card agreement the better for you to admit this fact now.

 

i am sure that you are aware that an attempt by a creditor to mislead a client as to the existence of an agreement - when none exists can amount in certain circumstances to a criminal offence.

 

If you intend to supply a Reconstructed agreement you must tell me so.

 

You will note thatIi have continued making payments under the agreement since your failure to comply with s78 last December. However- it is clear that there is no incentive for your to take my complaints seriously and also you are seeking to charge Exhorbitant interest rates on an alleged agreement which you are not prepared to substantiate

 

 

i therefore advise you that if you have failed to comply with my s78 request by 14 February 2011 , or in the alternative given me a full explanation as to why you cannot do so I intend to cease all payments until you have complied

 

Please also take this letter as an instruction not to telephone me again in this matter- and that no permission or agreement will be forthcoming to discuss this matter with "doorstep callers"

 

All future communications in this matter must be in writing in order to provide a full audit trail of all that is said and done.

 

All written correspondence will be acknowledged and responded to in a timely fashion

 

I am aware that this might impact on my credit files and i intend to make a notation on my credit files as to the reasons for ceasing payments to you if this becomes necessary

 

Yours sincerely

 

 

xxx

 

(if they returned your £1fee- send another)

 

 

because of the exhorbitant interest rate they are charging- you really need to get this out in the open - it matters not whether they do or do not produce a legally enforceable agreement- you need to deal with it NOW

 

(IMO)

 

 

from now on WITH NO EXCEPTIONS - no matter how "inviting" any offer may be DO NOT attempt ANY discussions of any kind on the telephone

 

the EASIEST way to end a telephone call is to give false "security details" when asked

 

if they challenge it say " i think i know what my own date of birth is/mothers maiden name etc is

 

THEY will then end the call because they cannot proceed (but as i say a true call and/or cellphone blackball app will give you total peace of mind if you can afford it)

Edited January 29, 2011 by diddydicky

[minmoo]

Thank you ever so much diddydicky for your wonderful advice it really is appreciated. I beg to differ slightly, it is my fault i am in this mess lol, but everyone here is very kind. I dont wish to bury my head in the sand which is why i am here but i will slightly modify your letter as i stopped payment when they couldnt produce the cca two months ago. Mainly in the hope they would deal with me. So far this has proven fruitless so i will send your letter this morning.

 

Thanks for taking the time

[leopard lady]

good luck minmoo, keep the 34.9% club updated

[means2anend]

Subbing...and seconding DD's letter..

 

minmoo CPUTR 2008 will force them one way or another to confirm or deny that they have in their possession a signed executed agreement.If they have not they then cannot produce a copy directly from the original agreement(THIS IS IMPORTANT as it is a REQUIREMENT as stated by HHJ WAksman in Paras 108 and 234 in Summary of findings in Carey when a unilateral power of variation of any term has been exercised by the Creditor. and therefore cannot comply with s61 which means that THEY will not take YOU to court.Which follows that they will not get a Judgement..hence no warrant of execution or any other methods for ENFORCING that judgement.

 

However they can do the things mentioned in McGuffick v RBS such as referring you to CRA's 'threatening to bring proceedings' although s127(3) SHALL not give the court power to enforce as a result of s61 having not been complied with.

 

Now it appears obvious that they have hiked up their interest rates since the inception of the alleged agreement and if they cannot EVEN supply you with an s78 copy 'information purposes'...they sure aint gonna have the a s61 'proof purpose' compliant copy if they deny or remain silent on that request under CPUTR 2008

 

I know that this is MBNA thread..but to understand the reasoning behind DD's letter and CPUTR 2008..this is the interpretation given to it by OFT.

 

Susan Edwards, Head of Credit Investigations and Enforcement, Office of Fair Trading May 2008 Misleading statements to debtors

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection From Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs.It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs

 

 

...I hope it makes things easier to conceptualise

rgds

m2ae

Edited February 1, 2011 by means2anend

[victoria_siempre]

Hi minmoo

 

I totally agree with means' argument.

 

x

 

v

[leopard lady]

Hi minmoo did you send the cputr letter? I have been advised to send similar after recieving an application form with illegible t&c on. Just trying to read up on cputr!!!!

[minmoo]

Hi folks, yes i sent it and await a reply although i wont hold my breath. They dont like veering away from their computer generated template letters do they? ;-)

Thanks m2ae, you have laid that out so even a numpty newbie like myself can understand Thanks to all the subbers!

[diddydicky]

Thanks M2AE

 

i knew i had that text re enterprise act somewhere (now i have it twice- to be sure!!)

[minmoo]

Thanks to everyones input i am awating a response from MBNA to the letter DD suggested. I have one question though and i have read so much conflicting opinions i just dont know what to do. Should i be making token payments at all at this point? I am not trying to avoid the debt but am either trying to get a payment plan in place that i can afford or the interest lowered to something that isnt obscene. So many opinions but times seem to be changing.

 

Anyone?

[victoria_siempre]

Hi minmoo

 

I don't think it matters greatly as long as they are token payments.

 

On one account I have, on another I haven't (because they won't communicate). The MBNA machine rolls on regardless.

 

Many will advise making token payments to demonstrate good faith; my instinct is that they will sell on when they get bored.

 

Since Jan1 OFT ruling they do seem to be more reasonable; this might be temporary, who knows?

 

My line remains: here is my affordable offer, here is my complaint re harassment by your agents, I have 6 months to action my complaint to fos following their Final Response.

 

x

 

v

Edited February 7, 2011 by victoria_siempre
addition

[minmoo]

Thanks vic, i think from a moral standpoint i would prefer to be paying something. I stopped initially in the futile hope they would communicate with me. Alas, no luck there. i will wait until the deadline for diddydickeys letter and then assess again.

[victoria_siempre]

fair dos minimoo

 

But morals are a hindrance in battle; I rewatched Kill Bill Vol 1 last night.

 

x

 

v

[minmoo]

And i myself watched Machete, same sort of thing with only the location differing. Perhaps a leaf from Danny Trejos book in how to stay cool under pressure is required

[PriorityOne]

Hi Minmoo... thanks for your PM....

 

I've whizzed through the thread, so may have missed some bits but from what I can see (Post 1), you have a nice letter from MBNA stating quite clearly that they do not have an Agreement for you and will not be pursuing this through the courts. Therefore you have 2 options:

 

You can either suspend payment altogether; knowing that they're not going to court with this but will probably sell it on at some point, or

Negotiate a F&F settlement based upon payments you've aready made and an assurance from them that they'll mark your credit file as "settled"

 

If you care about your credit file and want to go for a mortgage/re-mortgage at some point, (which you've mentioned somewhere on here), then the 2nd option may be the best one for you.

 

Have a think.... and let us know...

 

[minmoo]

Thanks for the input P1, the more eyes and opinions the better. I am going to give them a chance to reply to diddydickeys letter and then assess. Not much i can do about the mortgage, credit file already marked so no point worrying about spilt milk and all that. A f&f will only become an option when i have missed a good few more payments anyway. In my mind, it will probably need to be sold on before anyone will start listening to offers at all!

In fact, they have stopped phoning so thats nice and only one more letter reminding me of my obligation to pay and catch up. I reckon martin supple is a busy man!

[victoria_siempre]

Hi minmoo

 

I agree with Pone as a longer term strategy.

 

For now, I would counsel to make haste slowly and 'knock' the alleged debt. Make affordable payments/offers maybe £1 or £0 and they will become disinterested and sell on a worthless alleged debt; if you make a premature F&F offer they will smell blood money and pounce.

 

Softly, softly, catchee monkey; but this is my view not fact.

 

love

 

vic

[minmoo]

its just me vic. You know what its like, sitting,waiting and twiddling thumbs and nothing seems to be getting sorted. But its a long haul as many will testify and i need to chill out. I like to post here regardless of what has or hasn't changed. Its therapeutic

[PriorityOne]

What are you paying at the moment Minmoo?

[minmoo]

nothing, i stopped when they wouldn't help me and have used the money for priority stuff. Ie: food. They closed my account when i asked for help even though i hadn't ever missed or gone over and that got my back up and made me take action with a cca request.

[PriorityOne]

nothing, i stopped when they wouldn't help me and have used the money for priority stuff. Ie: food. They closed my account when i asked for help even though i hadn't ever missed or gone over and that got my back up and made me take action with a cca request.

 

Ok.... once the penny drops that they can't reach you by phone, it should go quiet for a while and then they'll sell it. You can then tell the new bunch to bog off...

 

[minmoo]

they probably know they have squeezed this particular cash cow dry anyway lol. Well past my usefulness for them!

[Bigdebtor]

Minmoo

 

Thanks for the pm that put me on to this thread - very useful stuff - with Diddydicky at his usual height of brilliance, incisiveness and sharpness of wit!.

 

Also pleased to see PriorityOne contributing too. He first put me on to CPUTR 2008 but I must admit I'm still struggling to get me head around just when and where to use this in the armoury of DCA-bashing weapons.

 

I'm going to use a version of DD's above letter to flush out matters with a couple of DCA's who have bought debts but don't seem to know they should have decent paperwork too. If it's OK I'll start a new thread on this and post a link on here for feedback on my version?

 

From my signature you'll see I settled £34k of MBNA debts for 35% F&F - which they offered after me only missing payments for a few months. This was long before I discovered CAG and I now suspect they had diddly squat to enforce the debt. On my good days I think I saved £23k. On most days I know I wasted £11k as now I would have given them NOTHING! In Scotland they have to "aver" to the court before issuing papers - and as far as I am aware (not having been in court at all - yet!) they need the original agreement to get the debt enforced by a Scottish court - so their chances would have been zilch if all they had was a microfiche copy of the original signed agreement - which seems to be par for MBNA (and Barclaycard?) - even if all PT's were present and correct.

 

Ah well - £11k probably ill spent - but still loads to fight for - and my total debt "repayments" just now are £5 per month (no interest or charges levied for several years now) to each of two DCA's - basically to keep them off my back - although I'll be pleased to see both these debts finally repaid just short of my 130th birthday! When this happens I intend to go clubbing and pick up either two 65 year olds for a night of unbridled passion - or three 43 year olds if the sexagenarians are a bit past it (always assuming my wife is not still around - or at least not able to keep track on me so closely as she does right now!).

 

Thanks again!

 

BD

[minmoo]

Thanks for looking in BD. I have seen a lot of talk about using CPUTR lately and pointing people in the direction of DD's letter here serves two purposes. 1- it gives people an idea of what cputr is about and 2- it gives my thread a wider audience lol I'm glad it might help you.

As for the mbna settlement, i would look on it as money saved and the ability to relieve some of the stress. As we all know, its not about debt avoidance but about being treated fairly. Please leave a link on here, its good to share.

 

When you get to this clubbing stage i would usually ask for an invite but alas, my lovely wife would certainly not be chuffed so you are on your own:lol: Good luck!