Are MBNA in default of YOUR cca request?

[redsue]

Hi everyone - sorry not been around to help but finally gave birth last month to my gorgeous daughter Ruby and have been living in a bubble since then.

Obviously I'm not about as much but will help if I can.

Still fine tuning the POC but if anyone would like me to send them a copy can you pm me with your email details and will see what I can do.

[hellhasnofury]

Hi everyone - sorry not been around to help but finally gave birth last month to my gorgeous daughter Ruby and have been living in a bubble since then.

Obviously I'm not about as much but will help if I can.

Still fine tuning the POC but if anyone would like me to send them a copy can you pm me with your email details and will see what I can do.

 

How wonderful, and lovely baby girl, hope all went well

 

Congradulations Mummy Redsue:D

[Alphageek]

Congratulations on your new arrival

[yrag]

Hi,

 

Been a member since early 2007, after looking for information on Axxess International (offshore pre-paid credit card) who are sitting on _our_ money...

 

Then found the legalities CCA 1974 concerning CCs (of which Axxess was not signed under).

 

Anyhow, Axxess is a different matter, they owe us.

 

But, after a couple of business failures (you cant trust staff, seriously - now in the hands of the police!), our income dropped through the floor and a number of 'so called' creditors' started demanding money. MBNA are one, for three cards (2 for the wife and one is mine).

 

I requested my 'executed agreement' and got back my application form. Likewise for the wife. I then, after over a month, informed them of their error and was told that they had fullfilled their legal obligation.

 

They are still phone constantly, sometimes they are not very pleasant either!

 

My real question(s) are :

 

1) is an application form _definately_ not an 'executed agreement'?

 

2) is what appears to be an agreement, when it states further checks may/will be performed, still an 'executed agreement' (not MBNA)?

 

3) does a business loan, for a partnership, is signed by ownly one party, still classed as an 'executed agreement' (once again, not MBNA)?

 

4) on behalf of my in-laws, if there is the supply of goods without the agreement actually being signed, what is their legal rights?

 

Sorry for all the questions...

 

Off to make a contribution to ensure this site lives!

[davefirewalker]

Hi,

 

Been a member since early 2007, after looking for information on Axxess International (offshore pre-paid credit card) who are sitting on _our_ money...

 

Then found the legalities CCA 1974 concerning CCs (of which Axxess was not signed under).

 

Anyhow, Axxess is a different matter, they owe us.

 

But, after a couple of business failures (you cant trust staff, seriously - now in the hands of the police!), our income dropped through the floor and a number of 'so called' creditors' started demanding money. MBNA are one, for three cards (2 for the wife and one is mine).

 

I requested my 'executed agreement' and got back my application form. Likewise for the wife. I then, after over a month, informed them of their error and was told that they had fullfilled their legal obligation.

 

They are still phone constantly, sometimes they are not very pleasant either!

 

My real question(s) are :

 

1) is an application form _definately_ not an 'executed agreement'?

 

2) is what appears to be an agreement, when it states further checks may/will be performed, still an 'executed agreement' (not MBNA)?

 

3) does a business loan, for a partnership, is signed by ownly one party, still classed as an 'executed agreement' (once again, not MBNA)?

 

4) on behalf of my in-laws, if there is the supply of goods without the agreement actually being signed, what is their legal rights?

 

Sorry for all the questions...

 

Off to make a contribution to ensure this site lives!

 

as for the calls send them a "stop harassing me by phone" letter ask for all comunications to be in writing only. that usually has the desired effect. quote the 1997 harassment act

 

1....it depends if it has all the prescribed terms.....if it doesnt its unenforceable. But if all the terms are there you'll have a bit of a fight.

 

2 it would appear to be a prospective agreement but same as no. 1 above

 

3 business loans are a little different...but if it says "regulated by the consumer credit act" then as no.1

 

4 no sig = no agreement

 

if I've read it right

 

 

If I were you I would Start your own thread either under general debt or specifically MBNA then you will get other people looking into it. have a look at my ongoing battles with MBNA, barclaycard and morgan stanley....here ......http://www.consumeractiongroup.co.uk/forum/general-debt/84285-ccas-dave-against-world.html

 

 

it will be a battle but worth it in the end

 

Dave

[redsue]

right, finally back on the warpath - they issued me with a default on 27 Nov 07 but surprise, surprise got no Default Notice.

 

To bring you all up to speed,

 

Got this letter back from them on 18 Oct 07

 

Re: Trading Standards Enquiry

 

Thank you for your letter dated 2 October 2007 and the letter before action which you enclosed. I can see from the contents of those letters and from the contents of previous correspondence, that you have raised a number of technical, legal questions regarding your credit agreement and MBNA procedures. I can also see that MBNA has written to you on a number of occasions and provided you with explanations regarding various aspects of your agreement.

 

Rather than re-visit all those issues in this letter, or provide you with a detailed, technical legal analysis (i take it they mean, they can't answer my questions), I have instead set out what I think are probably the major outstanding points upon which you would like MBNA to respond.

 

Having read your previous correspondence, I am confident that you will want to reach your own conclusions (i bet you are) regarding these points, to which end I should point out that I am not providing you with any legal advice in this letter. (why I am suspicious at this point?) In fact, if you haven't already done so and you wish to take matters further, then it is recommended that you seek independent legal advice.

 

In your letters, you have queried the copies of the credit agreement which were sent to you in response to your request under s78 of the Consumer Credit Act 1974. You were concerned that the initial photocopy of your agreement was partially illegible and that the photocopy appeared to be incomplete.

 

Having reviewed previous correspondence, I can see that a photocopy of the original credit agreement which was sent to you was hard to read (i told you that) in places (although other versions which you have now received appear to be a lot clearer). I am also aware that the photocopy of your original credit agreement only displays the signature page and I am sorry that you did not receive a clear and complete copy at the first time of asking.

 

I can also see, however, that you have received a full copy of your credit agreement, including applicable terms and conditions (not the original ones tho), as well as a statement of account which showed the sums you then owed MBNA.

 

In addition to the information which you have already received, I have enclosed with this letter (this is the best bit by far) a template copy of the information which we understand would have appeared on the reverse side of your original credit agreement (albeit in a slightly different format). (Its from June 95 - 2 years after card was issued). I am sorry that part of this page has not been copied - unfortunately, it does not appear on the copy we hold here. It does however, show the contents which you have queried and which were required to be included by law.

 

(so they have sent me a partially photocopied page of a template of the terms and conditions from 25 months after my card was first issued - how on earth do these relate to me? They could be anybody's)

 

As you are aware, my colleagues have been trying to locate the complete photocopy of your original credit agreement for you. This has proved difficult, as it appears that the two sides of the agreement were not saved together. (ha ha ha ha ha - an admission?) However, I would like to clarify that it is not actually necessary to provide you with an exact photocopy of both sides of your original agreement in order to satisfy S78.

 

In fact, the full copy of the credit agreement which you have already recieved does suffice for the purposes of S78, because it is a copy which contains the material terms of your agreement, as subsequently varied. Further, it is not necessary to provide you with a copy of the original terms and conditions of the agreement. This is because the copy of the terms and conditions which you received at the time you entered the agreement, was intended to be kept by you. How could I do this when they were on the reverse of the application form which would have been sent back to them? Idiots...

As such, the law allows MBNA to respond to your s78 request without having to provide you with a further copy of those original terms and conditions.

 

In conclusion, I can see that MBNA has previously stated that it considers your credit agreement to be valid and enforceable and your s78 request to have been properly satisfied. Although I have not detailed all of the legal arguments in this letter (why?) I have arrived at the same conclusion. In simple terms, I can see that you entered into a credit agreement (which appears to comply with the necessary legal requirements; I can see that you have used the credit facility and borrowed money; I can see that you have failed to make proper repayment against that borrowing; (cos MBNA where in default of s78) and I can see that you have made a s78 request which appears to have been responded to in full.

 

As such, the sums which you have borrowed, together with the applicable fees and interest, are still owing and payable by you.

 

Yours sincerely

Wayne (dodge any legal questions which may get me in trouble) Hatton

Corporate Solicitor

 

Ok, so I then sent him back this letter on 7th Jan 07 (albeit slightly late! - what with giving birth and babies and xmas and such like!)

 

DEFAULT UNDER SECTION 78 OF THE CONSUMER CREDIT ACT 1974

TRADING STANDARDS COMPLAINT

 

Dear Mr Moron

 

ACCOUNT NUMBER: xxxx

 

Thank you for you letter dated 12 October 2007, which I received on the 16 October 2007. I thank you for the recommendation that I seek independent legal advice, I can assure you that I already have.

 

You maintain that I have asked a number of technical, legal questions regarding the paperwork you have sent in response to the alleged credit agreement. They are quite simple questions requiring straightforward answers, which despite me asking them on a least five previous occasions, you refuse to answer them.

 

1. Is the documentation you have sent, that on which MBNA are relying on in court to enforce the agreement?

a. Yes

b. No

 

2. On which date below, do you believe MBNA fulfilled the S78 request?

a. 18 June 2007

b. 28 September

c. 12 October 2007

 

In your letter you finally admit that the copy of the original signature page of the alleged agreement was in fact illegible, despite previous letters refusing to acknowledge this was the case. If you had failed in sending me a clear copy as required by law, why did MBNA continue to ignore my letters and enforce the agreement?

 

You also admit that you are unable to find the original terms and conditions that are referred to on the signature page, I am somewhat bemused as to why you would then send a partially photocopied page of terms and conditions from June 1995. In what way do these relate to me? How are they applicable to the signature page signed two years earlier?

 

To state that this information somehow relates to me is misleading and incorrect. Especially as S78 CCA 1974 specifies that the agreement ''must be sent with any documents referred to there-in” (ie the original terms and conditions, which at the time of inception, allow any terms or conditions/rates etc to be varied at a future date).

 

They are most definitely required under S78 and would definitely be required to enforce the agreement. How can MBNA claim any breach of a regulated agreement? As no terms and conditions relevant to it have been provided.

 

 

You state ”Further, it is not necessary to provide you with a copy of the original terms and conditions of the agreement. This is because the copy of the terms and conditions which you received at the time you entered the agreement, was intended to be kept by you.”

 

Again, this is incorrect and untrue. How would I keep hold of a copy of the terms and conditions when they were on the reverse of the Application Form? As the Creditor it is MBNA’s responsibility to prove in a court of law that the agreement exists and the terms and conditions on which the agreement was completed.

 

As you continue to refuse to accept the legal arguments above and repeatedly misquote and misinterpret the CCA 1974 you leave me with no choice but to continue with legal action against you.

 

I require a simple, straightforward answer to the following 2 questions

 

1. Is the documentation you have sent, that on which MBNA are relying on in court to enforce the agreement?

a. Yes

b. No

 

2. On which date below, do you believe MBNA fulfilled the S78 request?

a. 18 June 2007

b. 28 September 2007

c. 12 October 2007

 

I also note from the last statement sent to me that you to plan to sell on this account. How is this possible? Please be aware that I shall also be asking the third party for the correct paperwork that they will rely on in court to enforce this agreement and inform them of your unlawful actions with regards to this account.

 

I await your answers within 14 (working) days. If you refuse to answer the questions then it will be brought to the attention of the judge. Your letter should also include your proposed actions in relation to the lack of a regulated credit agreement.

 

So I am now going to send a reminder that they haven't fulfilled their obligation to the S.A.R - (Subject Access Request) (for the 3rd time) original SAR request sent 08.07.07, reminder sent 06.09.07. Some paperwork sent to me on 03/10/07

( I told you I'd been busy! ) to try and chase up the default notice.

 

I'm assuming they have now sold on the debt to a DCA although I've not had any paperwork through - have had some dodgy calls tho trying to get me to confirm who I am - don't think so .

 

So I've a few things to do at the minute (understatement of the year)

My plan of action is to

a. Send another letter back to MBNA saying they still haven't complied with my SAR request fully and reminding them I need everything with regards to the account for the life of the account.

b. Write back to MBNA regarding the unlawful default of the account and reminding him that I need answers to the above letter.

c. Write to all 3 of the CRAs

d. Complain to FOS, FSA and Information Commissioner office

e. Send Freedom of Information Act request to my local TS with regards to all corresspondence between Chester TS and MBNA regarding my account.

 

Could anyone please give me advice on

a. CPR (18?) and how this applies to getting MBNA to answer some key questions which are very relevant to my case

b. Default Notice removal when one was never received.

 

So I'll have 2 court cases against MBNA

- 1 for non-compliance of SAR

- 1 for unenforceable credit agreement, plus default removal, plus reclaim of charges since MBNA in default of s78

 

Finally, apologies top anyone who wanted to take a peek at my POCs sorry but I've been so busy over the last few months. x x

[redsue]

I'm now gonna starting logging calls from the DCA (for my court bundle).

Not had any paperwork through yet from them

 

08.02.08 - wouldn't confirm my ID

12.02.08 - wouldn't confirm my ID

[hellhasnofury]

Hello Redsue,

 

Glad to see you back with a passion, and still enjoying the good fight:D

 

I sent a second SAR to put the account back into dispute after their final responce telling me they would not enter into any correspondece with me. gits. They are not allowed to have the last word.

 

The second SAR they sent me was extremely interesting. unlike the first(they only sent me statements for the last six years). This one gave me all the calls that were made to me and the transcripts the callers left.

 

Will enjoy the next letter of complaint to them:D

[redsue]

Hi HHNF

 

Nice to hear from you - I'm watching your ongoing battles with interest.

I also received the same info as you from my 2nd SAR but the account has been opened since 1993 and I've got no info beyond 6 years.

I'm also keen to find the Default Notice they werer supposed to have sent me.

Will wait and see...

[hellhasnofury]

Hi HHNF

 

Nice to hear from you - I'm watching your ongoing battles with interest.

I also received the same info as you from my 2nd S.A.R - (Subject Access Request) but the account has been opened since 1993 and I've got no info beyond 6 years.

I'm also keen to find the Default Notice they werer supposed to have sent me.

Will wait and see...

 

Hello REdsue,

Its probably with mine in some filing cabinet:p In their dreams eh:D

[redsue]

Yes, they will have filed it the the drawer marked BIN!

[hellhasnofury]

Yes, they will have filed it the the drawer marked BIN!

:lol:

[robcag]

Hi redsue

 

Just been catching up with your thread.

 

The words redsue, MBNA, head, brick wall, spring to mind!

 

Keep up the fight and good luck,

 

Rob

[redsue]

cheers Robcag! Well I'm hoping I'll definately have the last laugh - just researching at the moment to take them to court and having fun with the DCA when they call

[redsue]

I thought I would start this thread to help myself keep a track of the developments on my 'battle' with MBNA and the hope that I can get a default removed that MBNA have added to my credit record despite admitting they do not have a consumer credit agreement with all the prescribed terms.

 

My thread about the beginning of this battle is here

http://www.consumeractiongroup.co.uk/forum/mbna/81907-mbna-ding-ding-round.html#post729106

 

Now I'm wanting to get this default removed as it is starting to become a pain as I'm self employed. Thanks to the battles of finlander and many others I've decided to take the bull by the horns and do something about it instead of letting MBNA retaliate by marking my previously good credit record because they won't/can't take me to court for enforceability.

[redsue]

ok, so I sent Surlybonds letter to MBNA on 3.7.08 and it was signed for on 7.7.08 and I still haven't had any response for them - not even an acknowledgement.

 

This is the 3rd letter I have sent to them since Dec 07 regarding this issue, the previous 2 were sent to one of the company solicitors.

This is in breach of the banking code.

 

I have also notified Experian, Call Credit and Equifax on 15.7.08 about the default and I have a Notice of Correction on my file at the moment - but lets face it, its just a formality, they'll just quote loads and loads of waffle, then add the default back on...

 

Do I complain to the FOS about MBNA basically ignoring my letters? I'm also waiting for them to send evidence of a default notice as I never ever received one.

thanks

[redsue]

anyone?

 

MBNA didn't sent me a default notice when they defaulted me in Nov - I've since written to them 3 times (with proof of purchase) asking for it and they have never, ever replied - what are my next steps?

[redsue]

anyone....

[banker_rhymes_with]

Hello Redsue!

 

Just bumping, as I'm either in the same Boat, or will be soon!

 

Had plenty of MBNA Default Threats, Copies of my Title Deeds, Postcards, Threat Letters, 100's of Harassment Calls...

 

...but I've yet to see a Default Notice, although some of their Letters seem to suggest they have issued them and/or are about to issue them.

 

I've also yet to see an Enforceable Agreement too, but I know that is a minor issue for these all powerful bankers.

 

I'll be checking the usual shower of CRAs soon, to see if anything has popped up there without me being told.

 

Anyway, watching with interest.

 

Cheers,

BRW

[BankFodder]

You won't get any joy by complaining to the MBNA - or any other bank for that matter.

 

No one seems to have cottoned on that:-

 

1. They would rather cut off their legs than remove a default
   
2. They receive tons of complaints all of the time and ignore them
   
3. If they receive more than two letters from you, they recognise that your compaints are just bluster and will never go further
   

 

Therefore you should:

 

1. Study the Information Commissioner guidance on defaults
   
2. Be aware of the obligations under the Data Protection Act
   
3. Be aware of the FOS jurisdiction over CRAs
   

and then:-

 

 

1. Write a short letter of complaint to the MBNA (or whoever) setting out your argument and the basis upon which is founded
   
2. Give a short deadline for response - 10 days
   
3. Don't write to them again
   
4. Complain to the Information Commissioner
   
5. Lodge a dispute with the CRA
   
6. Begin a complaint to the FOS
   
7. Take a Data Protection Act legal action if you think that your case is good enough
   

Anyone who starts sending repeated letters to the financial institution is wasting their own time and exhausting their own energy on a useless excercise.

Anyone who sends long-winded swaggering, point-scoring letters to these institutions is living in some kind of dreamworld if you expect that your letters will:

 

1. be read
   
2. be understood
   
3. carry the day
   

We have lots of these kinds of thread in this sub-forum and of course they attract lots of attention from lots of the other users because they like to gather round and cheer you on - but it is just an illusory paper-exercise. I'm not aware that any of these have ever had any success.

 

If you want to make a headway on default removal, you have to be surgical and cut to the chase immediately.

[banker_rhymes_with]

Hello BankFodder!

 

Fully agree, less is more when writing to these bankers.

 

They really do not listen, so it is best to write only those Letters that are important to show that you sent the right request/complaint at the right time, so you have a clear Letter Writing Audit Trail to take your real complaint to the Authority that matters.

 

In effect, any Letters you do write, should be drafted not with the banker in mind, but with the Authority in mind who will later read these Letters when you complain and seek their help.

 

Cheers,

BRW

[redsue]

Thanks BF and BRW - you're so right!

 

I don't think I'll bother writing to MBNA again - they are fully aware of my complaint as it has been ongoing for 15 months.

I've already placed a NOC with 3 CRAs, so I'll now lodge my complaint with Information Commissioner - then full complaints to each CRA - then it seems court action.

ta

[lozzzy]

hey redsue,

 

how have you gone about placing a NOC with the CRA's? I looked on there website and they mention about doing it but suprise suprise never mention how!

[sfuk]

Hey Redsue

 

Just a note of congrats on baby and just to say keep banging on at em. Dont let em grind ya down.

 

SFUK

[redsue]

finally, finally back in the land of the living and ready to take MBNA on.

 

In July of this year I sent them this letter:

 

FORMAL NOTICE TO DESIST FROM PROCESSING OR DISCLOSING PERSONAL SUBJECT DATA

 

 

Dear Sir or Madam:

 

ACCOUNT NUMBER: xx xx xx xx

 

I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and CallCredit.

 

It is noted that there exists, within all three files, an entry referenced as MBNA Europe Bank Limited indicating a former credit card account of xxxxx.

 

This is recorded as “In Default” which was registered on xx/11/2008.

 

I am contesting that MBNA’s continued processing of my data is an unwarranted act and I enclose a Statutory Notice to that effect, which is deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit.

 

My written permission allowing MBNA to continue processing, or disclosing, my personal subject data was revoked upon termination of that original contract and I hereby reiterate that revocation. I also did not receive any such Notice of Default as required by the conditions of the Consumer Credit Act 1974.

 

Unless the Bank can provide a true copy of the said Notice, then I consider that any default entry on my credit files to be wholly unwarranted.

 

However, if you can supply the copy, then I contest MBNA’s continued processing on the following grounds.

 

As you are aware, I am afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which my data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

4. Personal data shall be accurate and, where necessary, kept up to date.

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

In my case, MBNA is still processing data after the cancellation of the contract, whether or not this is a simple renewal process of the default flag, daily or by other timing factor. As that contract is no longer in situ, then my written permission has also ceased from the date of cancellation.

 

 

This is confirmed in Principle 2 of the Data Protection Act, which states:

"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."

I emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more. I also emphasise the term "shall not be further processed".

 

I have taken the matter up with the Credit Reference Agencies, and they had claimed that they had a

“legal right” to maintain this type of adverse entry for up to six years. When I challenged them to quote me the exact Statute that includes this so-called “legal right”, they remained remarkably quiet. Only after my continued insistence of disclosure did they eventually concede that, whilst they have no statutory right, it is

“standard industry practice” but they added that they are “allowed to by Law”.

After further challenges, they finally admitted that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.”

 

As a highly-educated company secretary for a major financial institution, may I respectfully presume that you recognise that “standard industry practice” does not correlate with “legal right”?

 

Further investigation has also led me to conclude that the only six-year data ‘retention rule’, to which they may adhere to, is in relation to information in the public domain, e.g. Bankruptcy Orders/Discharges, IVAs, CCJs, etc. These are kept in the public domain for six years. But, these are sealed orders issued by a judge through the Courts who oversee the ultimate jurisdiction in all matters relating to Law, be it the criminal code or the Common Law. It is not up to Credit Reference Agencies, or lenders, to decide legal issues.

 

In addition, the agencies may also hold information that is deemed ‘in the public interest’ for the avoidance of credit fraud or deliberate repayment avoidance; I refer, of course, to CIFAS and GAIN entries on a credit file. My former account was not subject to any such marker, nor is my former civil contract with MBNA a public matter.

After scrutiny of all the relevant legislation, including the Consumer Credit Act (As Amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. MBNA) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

 

However, there are some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

10. - (2) Subsection (1) does not apply-

(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met,

or

(b) in such other cases as may be prescribed by the Secretary of State by order.

 

To paragraph (b), I can only presume that MBNA has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves MBNA with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where MBNA’s Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2.

I have reproduced these exemption paragraphs, in full, below:

1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

 

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

It is my contention that MBNA’s supposed right of obtaining an exemption is not contained within any of these paragraphs. I have followed each in turn with my notation to give a clearer explanation, should there be any lack of clarity.

1. The data subject has given his consent to the processing.

That consent was terminated upon the cessation of the contract and, as stated earlier, I reiterate the revocation herein, and by the attached Statutory Notice. In the absence of strict proof of an enforceable credit agreement containing prescribed terms as required in Law, I would suggest the alleged debt is irredeemably unenforceable and should therefore not exist.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

For (a), there is no contract being performed, and for (b), MBNA and I are not entering into any form of contract, and certainly not at my request.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

According to the Information Commissioners Office (I.C.O.), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy.

 

These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

We all know that the three major credit reference agencies are not Government bodies, nor official agencies, but for-profit companies, even though they like to think they are official. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

With reference to the I.C.O. again, this is interpreted as anything that affects the data subject as a matter of life and death. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. I do not believe that my former account details could be described as anything like a matter of life or death.

 

So, it is clear to see that there is neither statutory provision permitting MBNA’s Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that MBNA is relying on the Common Law, and contractual law, as determined by the contract that both parties originally agreed.

 

However, the contract that I originally signed with the bank, only gave MBNA permission to process data during the term of that contract. I think it is fair to assume that you agree that the contract was terminated last year whether or not a Default Notice was served. This was after your continued refusal to supply me with an enforceable, regulated agreement containing all of the prescribed terms.

 

The contract neither included any other permission, nor did it imply that your perceived 'rights' to process my data would be ‘in perpetuity’. There was also no clause contained within the contract that stated that MBNA had any arbitrary right to continuing processing data for up to six years after the ending of the contract.

 

Also, I cannot recall any clear statement that gave my express permission for MBNA to continue disclosing my subject data to third parties after the end of the contract. You are no doubt aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the Data Protection Act.

 

However, if I am mistaken, and the contract did, indeed, specify unlimited time extensions, then you must provide me with a copy of those signed terms indicating where I have agreed to them. This should be sent to me as one of your enclosures, if you wish to contest the enclosed Statutory Notice. You should be aware that you have, by statute, twenty-one days in which to either comply with my Notice, or give written notice stating your reasons and why you consider the Notice unjustified.

 

In summary, in relation to this former credit card account, I am formally instructing you, as an authorised officer of the Bank, from this day onwards, to:

1) cease to continue storing, processing or communicating my data;

2) remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection Act, namely:

(1) An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

 

Of particular note is the Acts own term “his creditworthiness”;

3) cease to disclose any data to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc; and

4) instruct Equifax plc, Experian Ltd and Callcredit plc to remove all data pertaining to your records on me, to the extent that no data entry in relation to MBNA Europe Bank Limited will exist on my credit files.

 

Any failure on your part to adhere to these statutory timescales will automatically be interpreted as your non-compliance with the legal procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall have no alternative but to refer the matter to the Court to seek an Order to that effect.

 

By your own admission, there is no credit agreement as defined under section 60 of the Act. Therefore in accordance with the Act section 142(1)(b) I shall also request that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3).

 

Should it be necessary to refer the matter to the Court, then I shall also apply for Court fees and legal costs against the Bank. I shall also reserve the right to seek redress for damages as per the remit of the Data Protection Act.

 

I trust that I have made my position clear, and that MBNA will now make a serious effort to understand its legal obligations and effect the changes requested. Should you be in any doubt as to the Banks obligations as a Data Controller, then I would advise that you consult your corporate counsel.

In any event, I shall expect a written confirmation from you acknowledging the contents of this letter within 5 working days, as per the requirements of section 15.3 of the Banking Code.

 

I received a letter saying they would reply by 2nd Sept 08. I'm still waiting.

They have really left me with no option now but to take them to court - just need a bit of guidance really.

 

My head is spinning with all the regulations and case law...

 

I'm drafting my POCs now and could do with some help highlighting the numerous laws/regulations they have broken along the way.

 

Can anybody help please?