Interesting Convo with the MBNA Legal Dept

[Fullyskinted]

I just spoke to the legal dept of MBNA - a colleageue of Mr Wareings.

 

I was discussing my 'case' with him. One thing he highlighted, was that although the CCA Sec 78 dictates that the account is unenforceable etc after the 42 days rulle thingy, that there are OTHER ways of enforceing a debt. He wouldnt disclose what or where they could be found - he simply advised that I seek more legal advice from a professionsal with more knowledge.

 

So, can someone tell me where I can find this information!?! He advised that I should make the payments as per normal and that although my claims that I was not oblidged to make payments etc etc sounded in line with the CCA Sec 78 and its content - they were still deemed payable.

He also went on to say that there are cases that have gone to court and that the judge had deemd that wvwn though there was a technical breach on the acct/agreement - there was still a debt outstanding that was payable...

 

He couldnt quote the case name though....

 

I need help on this matter FAST.

 

Any of which would be appreciated...

[ian1969uk]

I think it's rubbish to be honest. There are times when there can be a problem with the agreement but a judge can still enforce. However, if there is no signed agreement, or if the signed agreement lacks any of the prescribed terms, then a judge CANNOT enforce as long as these problems are pointed out to him.

 

I would have thought that, if what he was saying had any merit, he'd have been only too happy to tell you what he meant. Why wouldn't he? Presumably you'd find out anyway when they attempted these alternative enforcement methods and this would involve extra work from them. Surely it would make more sense to tell you what he meant and let you decide whether to make a payment in light of this information.

 

I reckon it's just more scare tactics.

[BLADES65]

I just spoke to the legal dept of MBNA - a colleageue of Mr Wareings.

 

I was discussing my 'case' with him. One thing he highlighted, was that although the CCA Sec 78 dictates that the account is unenforceable etc after the 42 days rulle thingy, that there are OTHER ways of enforceing a debt. He wouldnt disclose what or where they could be found - he simply advised that I seek more legal advice from a professionsal with more knowledge.

 

So, can someone tell me where I can find this information!?! He advised that I should make the payments as per normal and that although my claims that I was not oblidged to make payments etc etc sounded in line with the CCA Sec 78 and its content - they were still deemed payable.

He also went on to say that there are cases that have gone to court and that the judge had deemd that wvwn though there was a technical breach on the acct/agreement - there was still a debt outstanding that was payable...

 

He couldnt quote the case name though....

 

I need help on this matter FAST.

 

Any of which would be appreciated...

 

I think you've answered your own question in your post to be honest.

 

It is just bluster on his part, you have to remember they do this type of thing day in day out in order to plant seeds in the debtors mind that leads to them questioning their standpoint with the ultimate goal of getting them to pay.

 

In this instance he has suceeded as you appear to be worried.

 

My advice is DO NOT enter into verbal communication with them.

[Fullyskinted]

To be honest I only rang to give them a heads up that I was sending a response to their 'Final Response'...

[Jeff2000]

 

It is just bluster on his part, you have to remember they do this type of thing day in day out in order to plant seeds in the debtors mind that leads to them questioning their standpoint with the ultimate goal of getting them to pay.

 

 

My advice is DO NOT enter into verbal communication with them.

 

 

Hi,

 

 

I agree, I'd like to see them give that information in writing!

 

If it were correct, everybody who had a debt with MBNA would have been informed, and MBNA would be getting CCJ's with considerable ease!

 

 

 

Jeff.

[Sparkie1723]

The problem boils down to this .......it is not whether the agreement is enforceable or not, if its unenforceable people are under the impression it would cancel the debt...it doesnt all it does is render the agreement on how you are to pay it back unenforceable..... the dates.... the amount etc under that agreement.

Its about the debt

The final question the judge would ask is Mr ...so& so ..have you spent the money the "lender" has said you owe? if you answer Yes ....case for the lender and he willl make an order for you to pay ...unless there is a term or condition or "something wrong" with the actual agreement if you say no then you have have prove you haven't.

It then reverts to a simple contract under the Chitty on Contracts ( Common Law) etc, and the court will then rule how much you will/afford to pay.

I'm not a laywer this is only my view.

 

Banks have an easy way out ,they don't have to get a CCJ to hit you hard, they just put a default on your credit file and that stays there for six years and it is as damaging as any court order ..I know I got one pput ther by the RBOS and I had to take them to court to force them to remove it.

 

sparkie

[ian1969uk]

It's not as simple as that Sparkie. If there is no agreement, there was no right to charge interest. Most people will have more than repaid the original capital, and so the creditor has already had the debt repaid.

[tamadus]

I agree with ian, this is just another of their scaremongering tactics. If the agreement is unenforceable under sections 127 then a Judge cannot overule it.

 

Unenforceable under section 78 is another matter and production ofthe correct document makes it enforceable again. What you need to do is get what they claim is the agreement and see if it fails under section 127.

[Sparkie1723]

Sorry again to disagree ...but not completely, the problem with this arguement is that IF they have no right to charge interest then when we claim our charges back we have no right either to charge interest ....I.m only playing devils advocate not really arguing, only giving some options we may be faced with.

Thats what a judge will look at ......a balance.

sparkie

 

sparkie

[ian1969uk]

Of course there is a right to add interest onto charges. 8% is the statutory amount to recognise that they have had use of money for a period of time that they took unlawfully.

[Cornucopia]

I just spoke to the legal dept of MBNA - a colleageue of Mr Wareings.

 

I was discussing my 'case' with him. One thing he highlighted, was that although the CCA Sec 78 dictates that the account is unenforceable etc after the 42 days rulle thingy, that there are OTHER ways of enforceing a debt. He wouldnt disclose what or where they could be found - he simply advised that I seek more legal advice from a professionsal with more knowledge.

 

So, can someone tell me where I can find this information!?! He advised that I should make the payments as per normal and that although my claims that I was not oblidged to make payments etc etc sounded in line with the CCA Sec 78 and its content - they were still deemed payable.

He also went on to say that there are cases that have gone to court and that the judge had deemd that wvwn though there was a technical breach on the acct/agreement - there was still a debt outstanding that was payable...

 

He couldnt quote the case name though....

 

I need help on this matter FAST.

 

Any of which would be appreciated...

 

FS, I would be very interested to know who you spoke to, could you PM me if you would rather not put it on the thread - this is quite hilarious! It seems to me that WE have taught THEM something and if they cannot quote the case details, he really ought not to be quoting the "case" at all!

 

This is bluster and he as contradicted himself with the actual points of law in the act!

 

Never mind seeking the advice of a professional - he ought to have done that before speaking to you!

[Josie8]

I suggest you write to him confirming the conversation and ask him to supply you with the case citation etc. It is deemed seriously wrong for them to give false information to pressure a consumer into paying or signing agreements etc.

 

Ordinary contract law does not come into consideration here as you are a consumer and they are a business licensed for lending. Unfortunately for them the penalty of not having a true copy of the cca or all prescribed terms is that they lose the rights to enforce any payment on it.

 

In cases where there are certain aspects of agreement incorrect but they have a signed document containing all prescribed terms then the court has discretion as to enforcement etc.

 

Personally I think he was just trying to blind you with his legal knowhow lol! Might have been more convincing if he'd named the case........ :D

[Cornucopia]

I suggest you write to him confirming the conversation and ask him to supply you with the case citation etc. It is deemed seriously wrong for them to give false information to pressure a consumer into paying or signing agreements etc.

 

Ordinary contract law does not come into consideration here as you are a consumer and they are a business licensed for lending. Unfortunately for them the penalty of not having a true copy of the cca or all prescribed terms is that they lose the rights to enforce any payment on it.

 

In cases where there are certain aspects of agreement incorrect but they have a signed document containing all prescribed terms then the court has discretion as to enforcement etc.

 

Personally I think he was just trying to blind you with his legal knowhow lol! Might have been more convincing if he'd named the case........ :D

 

Or his legal "know not" as appears to be the case!

 

You are of course absolutely right Josie, I suspect the motives of Mr Rubbish Advisor at MBNA was to blind FS with science () with the hope of instilling fear and doubt, unfortunately, this very tactic could work on some consumers........thank GOD not here!

[Fullyskinted]

He would not divulge his last name but his first name was Wayne. I discussed the contents of Sec 78 as thats what they have had from me so far...

He then went on to say that (as I said) although the Sec 78 does state the agreement is unenforeable, the credit is still enforceable. (GOD I wish Id recorded it now!!!)

He said that if it were to go to court (as they have cases that have) the Judge could deem the agreement unenforceable, but that the debt still remained and was still payable. ( think thats been sid already). He woudl not divulge exact case details.

He asked me where I had got all the information and I said off the internet. He asked how I knew the phone number of Mr Wareing. I said off the internet. he asked me what site and I said I wasnt tellin! He then said well, if I was so coy about the information I have, i should understand why he was limited to the information he could give me...

 

he did say however that they had electronic copies of all the credit agreements and that as soon as he got off the phone he would look inot getting them sent to me. Clear and concise printed off copies. I asked why, if that was the case, did it take me 5 mths to recive the crap that I had... He didnt really have an answer to that!

I said about the 'Application Form' that they had supplied didnt meet the CCA Request and that there were no T&Cs, no credit limit etc etc. I also said that - with a slight amount of sarcasm - put it like this - you could apply for a HGV license, the DVLA would have a copy of your application etc, but if you didnt have the criteria to get the license you wouldnt get one! In the same way - although I had clearly applied for the Card, it wasnt a given that i got one! And the fact that the DD mandate was dated 2000 (the application form was dated 1998) went someway to giving the impression something wasnt right...

I also discussed the PPI as a) I dont recall taking it out and b) when i was unemployed for 6 mths and had no income I was completley broke - so asked MBNA for a freeze on the acct til I got back on my feet and lessen the troubel I was in. The PPI apparently didnt cover me and they said I was already paying the minimum. So I am writing to them about that aswell and have asked for a full refund of payments made regarding this...

 

I cant remember anythign else at this time as its late!

 

Thanks for all the comments so far.

[hisholinessthepope]

Fullyskint - in the Wilson car case the Lords stated that the Consumer Credit Act could not be side stepped by the Creditor through recourse to common law. It is CCA or nothing for these people.

[Fullyskinted]

Thanks Pope. I might have to add a little comment to my letter along those lines where I have mentioned the conversation to him.

[Josie8]

Thanks Pope. I might have to add a little comment to my letter along those lines where I have mentioned the conversation to him.

 

 

No don't mention it to him.......don't let him know how much you know case law wise................see what response you get back THEN hit him with the case citation..................:grin: :grin: :grin:

[hisholinessthepope]

I agree with Joise, let him dig a big hole first then fill it in on top of him.

 

I will find the paragraph in question from Wilson this evening for you and let you have it. Thinking about it I think it comes up at least twice in the case.

[Fullyskinted]

My only fear with all this is that Im gonna get MORE missed payments on my CRA file

If it werent for that Id just hang it out, but I want this sorted asap. WE say they shouldnt be asking for payments/adding interest/threatening/instrcting DCAs.... MBNA seem to have other ideas!!!

 

Thats the biggest bug bear I have with all this...

[Josie8]

My only fear with all this is that Im gonna get MORE missed payments on my CRA file

If it werent for that Id just hang it out, but I want this sorted asap. WE say they shouldnt be asking for payments/adding interest/threatening/instrcting DCAs.... MBNA seem to have other ideas!!!

 

Thats the biggest bug bear I have with all this...

 

 

If they are in default then they are not allowed to put adverse reports on credit file. Check your CRA's now and print a record of whats shown. Then write putting them on notice that in advent of them adverse reporting while they'te in fault you will issue claim in court to get them removed etc.

[ncf355]

FS,

 

if the agreement is unenforceable at the very least the data they are recording is incorrect (the amounts are wrong due to unlawful interest added)

 

This is a clear breach of the Data Protection Act, so any deal with them should include wiping ALL data related to the account from their and all 3rd party data systems

[Fullyskinted]

OK, I might need a little help / advice doing that... :S

[ncf355]

FS,

 

you need to take along look through the 'consumer credit agreements' and 'loan company cannot supply original agreement' threads, loads of info there

[Fullyskinted]

Oh dear....

 

Ive followed them quite closely up til abou tpage 300 I think! Been out of touch until the last fortnight...

[hisholinessthepope]

FS,

 

in the Wilson case paragragh 30 it confirms that they cannot side-step the Consumer Credit Agreement.

 

I am in a similar position with a creditor who has no agreement and I am looking to start a case against them to stop them processing data, CRA, chasing me, etc.

 

http://www.consumeractiongroup.co.uk/forum/general/94309-no-cca-agreement-unenforceable.html