AlphaGeeK Vs MBNA **WON**

[Alphageek]

Oh goody! This month's statement as well.

 

£1.00 credited to my account = my CCA fee. My token payment credited to my account as well.

 

Then LATE FEE and INTEREST CHARGED - lol.

 

Dear oh dear, oh dear.

[Josie8]

...................

Edited January 21, 2009 by Josie8

[Hopeful1]

Alphageek, i thought they couldn't continue to process information on your credit file if an account is in dispute? Is that what Josie is saying? They really are snakes in the grass aren't they?

[Josie8]

Alphageek, i thought they couldn't continue to process information on your credit file if an account is in dispute? Is that what Josie is saying? They really are snakes in the grass aren't they?

 

 

Yes thats what I am saying..............so I'd be inclined to concentrate their minds by issuing a LBA for the interest they are adding to your account while its in dispute and also the reporting to the CRA's. Let them explain to the judge why they haven't got a true copy of your executed agreement.

 

Meant to ask when did you take out your MBNA card?

[Alphageek]

I can't remember really. 1999 or 2000 probably.

 

Until I get a reply to my CCA request or a full SAR disclosure, I don't know.

[dpick]

I can't remember really. 1999 or 2000 probably.

 

Until I get a reply to my CCA request or a full S.A.R - (Subject Access Request) disclosure, I don't know.

 

Hi possibility that MBNA don't have all required documents for for-filling CCA requests if your 1999 of 2000 was not originally MBNA card My card was originally Bank of Scotland and when I requested CCA they sent

1, Application form from BOS

2, photo copy of microfiche copy of BOS agreement (almost unreadable but clear enough to see no prescribed terms on agreement

3, MBNA latest T/C that contain prescribed terms but not T/C applicable to BOS agreement.

 

After talking to other MBNA peeps it would seem that there is a good possibility that even if they have an agreement it would be unenforceable.

 

dpick:p

[Alphageek]

Hi dpick. My card was always an MBNA card.

[wednesday1867]

I thought mine was, turned out to be HBOS, which i gather is Bank of Scotland

[Alphageek]

Can you all please look over this and make sure I am not making any mistakes before I send?

 

Dear Sir

 

I refer to your letter dated xth June 2007, received on xnd June 2007 at my home address which states;

Your decision not to pay your arrears of £x, despite our reminders and offers of assistance, has forced MBNA to withdraw your credit line, and inform the Credit Reference Agency of the arrears.

 

If you persist in non-payment, your arrears will continue to be reported to the Credit Reference Agency, leading to a Default being registered against your name. This may severely affect your ability to borrow in the future, and will increase the likelihood of legal action, or a referral to a Debt Collection Agency.

I must remind you that I wrote to MBNA (Europe) Ltd requesting a true copy of the signed agreement under the terms of Sections 77(1) and 78(1) of the Consumer Credit Act 1974, enclosing the statutory maximum fee of £1 in the form of a postal order on the xth May 2007. You were in receipt of this letter as reported by The Royal Mail’s recorded delivery service on the Xth May 2007.

 

I have not been provided with a signed agreement under the Consumer Credit Act 1974, despite my properly formatted and paid for request.

 

For convenience I have reproduced the relevant sections of the Consumer Credit Act for you:-

1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing 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; and

 

(b) if the default continues for one month he commits an offence.

I note from your letter that you indicate a “likelihood of legal action”. Please note that under the terms of the Consumer Credit Act 1974 it clearly states:- he is not entitled, while the default continues, to enforce the agreement, and any contact from yourselves in this manner or tone in future will be seen as harassment and in breach of the Administration of Justice Act 1970.

I also note from a recent statement of the disputed, alleged, account that you have applied interest to the balance you claim is outstanding. This is clearly in breach of the Consumer Credit Act 1974 whilst the alleged account remains in dispute.

Additionally, I note you intend to or have now passed information regarding this disputed, alleged, account to a 3rd party and Under the Data Protection Act (1998) I have principled rights in that:

(Schedule I)

1. Personal data shall be processed fairly and lawfully.

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

(Schedule II)

1. The subject has given his consent.

2. The processing is necessary “for the performance of a contract to which the data subject is a party.”

You have failed to produce any evidence that I have consented to your processing of any data where I am the date subject and to do so or to start to do so would be in breach of Data Protection Act (1998).

The initial time frame for complying with my lawful Consumer Credit Act 1974 request has expired. MBNA (Europe) Ltd will shortly be committing and offence under this act.

Your subsequent communications are, I believe, designed to be harassing and in breach of the Administration of Justice Act 1970.

Your subsequent actions in processing data where I am the data subject without my consent is in breach of the Data Protection Act (1998).

It would seem a fairly simple task for an organisation the size of MBNA to comply with the law and provide me a copy of any agreement that exists between our two parties. I am baffled as to why you seem reluctant to provide it.

[dpick]

Hi dpick. My card was always an MBNA card.

 

good posibility they will have lost your agreement or are being a bit creative.

 

dpick:p

[dpick]

Can you all please look over this and make sure I am not making any mistakes before I send?

 

I can see no problems and if ok my pinch some bits for future reference

 

dpick:p

[Alphageek]

You're welcome. I pinched most of it from other posts on here anyway.

 

I just think one of my mentors on another thread would tell me off for not having and "or else" part to the letter.

[Alphageek]

I think miss muppet's sounded more menacing

 

I think it needs more work... but, then again, no-one at Chester Towers will read it, so perhaps not!

[Josie8]

.........................

Edited January 21, 2009 by Josie8

[Alphageek]

August 1997 is when I got the (alleged) card account from them.

[Josie8]

August 1997 is when I got the (alleged) card account from them.

 

Well lets see if they're identikit cut & pastes then.........lol!

[Josie8]

................

Edited January 21, 2009 by Josie8

[Josie8]

Hey Alpha how goes it ..................any news?

[Josie8]

.....................

Edited January 21, 2009 by Josie8

[Alphageek]

It's all quiet on the MBAN front.

[Alphageek]

Hi all, I have been a little quite on here this past week or so as I am moving house at the weekend.

 

So, MBNA are now in criminal default on my CCA request. They are over 40 days on my S.A.R - (Subject Access Request) request.

 

The charges I can total up come to just over £1000. With CCI it adds up to just over £2300.

 

My balance on the latest statement is just over £1900.

 

So I see it that my options are as follows.

1. Take them to Court for S.A.R - (Subject Access Request) non-compliance and see if there are any charges over 6 years old.
   
2. Just get on with a prelim for the charges I know about and, no doubt, proceed to MCOL or N1 stage and get a refund.


1. Then take action in step 1 and repeat step 2 for charges over 6 years old (if any)

[*]Tell them I acknowledge no debt to them and walk away. If they would like to take me to Court then so be it.

Or I could be really mean and take option 2, get back charges up to 6 years old, then option 1 to reclaim any charges over 6 years old and then tell them they can sing for what balance they claim I owe them.

 

The 3 options are listed in the order of the length of time I think they will take, with the longest being number 1.

 

What would you do?

[Josie8]

..........................

Edited January 21, 2009 by Josie8

[Alphageek]

I am going to send them two letters tomorrow on my way to work.

 

Frist, a CCA non-compliance and Data Protection Act s10 notice combination.

 

Dear Sir/Madam,

 

Re: − Account Number 0000

 

Re: my request under the Consumer Credit Act 1974

 

I am disappointed that you have not replied to my letter of 15th May 2007 and must advise you that you have not fulfilled your obligations under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding.

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a court 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.

 

Should I have to seek legal redress, your attention is drawn in particular to Civil Procedure Rules CPR 4.6 © which states

 

·CPR 4.6 © enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

You had until 29th May 2007 to provide me with the true copy I requested. You are now in default of my request. Any account I may hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor are I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

Further, you had until the 30th June 2007 to comply with my request before you committed a criminal offence. This date has now passed and 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 offer credit in the future.

 

Said offence under Section 77 (4) of the Consumer Credit Act 1974 is summarily punishable by a Level 4 fine on the standard scale.

 

To sum up, I am not obliged to make any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this alleged account. This includes adding further charges and passing any information to credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

If you have no such agreement, another worrying facet of this whole situation is the unlawful dissemination of my data by your company to a third party. Under the Data Protection Act (1998 ) I have principled rights in that:

 

(Schedule I)

1. Personal data shall be processed fairly and lawfully.

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

(Schedule II)

1. The subject has given his consent.

2. The processing is necessary “for the performance of a contract to which the data subject is a party.”

 

I have recently conducted an audit of my personal credit reports supplied by Experian. Within this file an entry referenced to the alleged debt is lodged.

 

However, I note that files have been updated continually I can only deduce that it is your firm updating my credit file without my consent or that your company is disseminating my information to a third party without my consent.

Notice pursuant to s.10 of The Data Protection Act 1998.

 

Therefore Take Notice that I require that you cease from processing within 7 days of the receipt by you of this notice or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party.

 

As you do not have, and never have had, my consent to process any data where I am the data subject I require destruction of any data you hold where I am the data subject. I also require a certificate of destruction showing

 

• Date of destruction

• Description of records or Record series disposed of

• Inclusive dates covered

• Method of destruction

• Name of person the records where destroyed by

• Name of Witness to destruction

• Name of Department Manager

 

Additionally, I require a quarterly written statement that no data has been processed by you where I am the data subject.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which may already have been caused and that as the processing of the said data in the way referred to in this notice would violate the fourth, first and sixth principles of The Data Protection Act 1998 to do so would be unwarranted.

 

Failure to comply with this request under the Data Protection Act 1998 will result in the matter being referred to the Information Commissioner.

 

I look forward to your prompt reply and in any event within 10 days.

 

Yours Sincerely,

 

Alphageek

 

Enc/

Excerpt “The Office of Fair Trading Debt collection guidance document Final guidance on unfair business practices July 2003 (updated December 2006)”

Secondly, a prelim for repayment of charges.

 

Dear Sir/Madam

 

Re: − Account Number 0000

 

Request for repayment of charges

 

My request

I am writing to ask you to refund to me the charges which you have levied from my account over the last few years.

 

I now understand that the regime of fees which you have been applying to my account in relation to late payments, exceeding credit limits and so forth are unlawful at Common Law and contrary to consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your charges really do reflect your costs?

 

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

Your responsibilities

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise.

 

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my right until now.

 

What I require

I calculate that you have taken £xx.xx in levies and further, I also claim interest at a rate of 23.95% as set out in the attached list of charges. I believe this rate to be justified under the principle of mutuality and reciprocity, and is based on your interest rate that would be applied under the terms of the above mentioned account. Therefore the total amount owed as of today’s date is £xx.xx with interest accruing at £x.xx per day.

Additionally, you have processed data where I am the data subject in contravention of the Data Protection Act (1998 ) and I require you to remove all data regarding this alleged account from the files of the three credit reference agencies. Please Note: Amendments and/or corrections to such entries will not be acceptable to me as you do not have, and never have had, my consent to process any data where I am the data subject.

My targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

 

If you dispute that I am entitled to a refund of these charges, I request that you forward within the above mentioned time scale, a true copy of the correctly executed agreement under which this alleged account is operated, a copy of the Terms and Conditions that were in force at the time my account was opened, and any subsequent amendments to those Terms and Conditions. These are requested under CPR Pre-Action Protocol 4.6©, and failure to provide them will be brought to the attention of the court, should it be necessary to commence a county court action.

 

If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

 

Yours faithfully,

 

Alphageek

 

Enc/ Schedule of charges

 

Any comments about sending them both at the same time?

[miss muppet]

Cor AG and you say mine was menacing, thats a great letter, should have them choking on their cornflakes!

[Alphageek]

Thanks Miss M - I did take inspiration from your's