Wrongful default drops off next month. Can I sue MBNA for defamation of character?

[redsue30]

Hi all

New to this site and was hoping for some advice.

Just over 6 years ago, I asked MBNA for a copy of my CC agreement plus terms & conditions I signed up for in 1993 for my Girobank CC. After months of them messing about, and sending various T&Cs of what I 'could' have signed up for, they admitted they did not have the original T&Cs I signed up to. MBNA dug out a badly copied signed agreement but it contained no prescribed T&Cs that could be linked to it said agreement.

They then went on to place a default on my credit file. I didn't receive a default notice or any warning of this at all. I was hoping it may have been incorrect to challenge it on those grounds, but unfortunately, I never received one. They never took me to court, they never pursued it any further - as I believe they couldn't chase the debt due to incorrect paperwork.

Fast forward 6 years and the default drops off next month. This has affected our ability to move house in that time amongst other things. Previous to this my credit file was really good and clean. It still is, apart from this one default.

My question is, can I now go on to sue them for defamation of character or something similar? I'm also going to pursue a PPI claim against them to for pre-exisiting medical conditions & self employment. I haven't attempted this before as I was afraid they could slap the default on again this time with a correct Default notice and I would have to wait another 6 years to clear my file.

Any advice would be really appreciated

[FlamingParrot]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

Hi and welcome!

Sorry you didn't get any replies earlier, I was away until today.

Just over 6 years ago, I asked MBNA for a copy of my CC agreement plus terms & conditions I signed up for in 1993 for my Girobank CC. After months of them messing about, and sending various T&Cs of what I 'could' have signed up for, they admitted they did not have the original T&Cs I signed up to. MBNA dug out a badly copied signed agreement but it contained no prescribed T&Cs that could be linked to it said agreement.

Presumably this Girobank card went on to become an A&L card, as mine has a similar history. I'm very surprised that MBNA should have been able to dig up a signed agreement for such a card, as far as I know from a good source (someone who used to work for MBNA), when MBNA bought the portfolio in 2002, they neglected to acquire the agreements and over 90% were destroyed.

I sent CCA and SAR requests to MBNA in March 2010 and on both replies they confirmed they were unable to retrieve anything due to 'archival retrieval issues with the A&L'.

They then went on to place a default on my credit file. I didn't receive a default notice or any warning of this at all. I was hoping it may have been incorrect to challenge it on those grounds, but unfortunately, I never received one. They never took me to court, they never pursued it any further - as I believe they couldn't chase the debt due to incorrect paperwork.

The lack of a default notice or a defective DN could be of help if they were to take you to court, otherwise there isn't much point in arguing about it.

Fast forward 6 years and the default drops off next month. This has affected our ability to move house in that time amongst other things. Previous to this my credit file was really good and clean. It still is, apart from this one default.

Presumably this debt is also statute barred by now? :marchmellow:

My question is, can I now go on to sue them for defamation of character or something similar?

Sadly no, you can't. In McGufick v RBS, Mr Justice Flaux established that reporting to the CRAs does not constitute enforcement, thus they can do so even when the account is unenforceable: http://www.wragge.com/analysis_5241.asp#.UmVHPyRXZgc

Mr Justice Flaux concluded that not only did reporting to the various CRAs not amount to enforcement, but that a number of other activities did not constitute enforcement either, such as:

• reporting to CRAs without also telling them that the agreement is currently unenforceable
• disseminating or threatening to disseminate the debtor's personal data in respect of the agreement to any third party

I'm also going to pursue a PPI claim against them to for pre-exisiting medical conditions & self employment. I haven't attempted this before as I was afraid they could slap the default on again this time with a correct Default notice and I would have to wait another 6 years to clear my file.

No, they cannot slap another default for the same account. :nono: However, if there's a balance outstanding, any redress would normally go towards the debt rather than to yourself. In some cases you may get it paid to yourself when the account has been assigned in absolute (sold) to a debt purchaser. Has yours been sold at all? As far as I know, my MBNA account has never been sold, despite MBNA selling most to Arrow over the past couple of years. :noidea:

[redsue30]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

Hi and welcome!

Sorry you didn't get any replies earlier, I was away until today.

Presumably this Girobank card went on to become an A&L card, as mine has a similar history. I'm very surprised that MBNA should have been able to dig up a signed agreement for such a card, as far as I know from a good source (someone who used to work for MBNA), when MBNA bought the portfolio in 2002, they neglected to acquire the agreements and over 90% were destroyed.

I sent CCA and SAR requests to MBNA in March 2010 and on both replies they confirmed they were unable to retrieve anything due to 'archival retrieval issues with the A&L'.

The lack of a default notice or a defective DN could be of help if they were to take you to court, otherwise there isn't much point in arguing about it.

Presumably this debt is also statute barred by now? :marchmellow:

Sadly no, you can't. In McGufick v RBS, Mr Justice Flaux established that reporting to the CRAs does not constitute enforcement, thus they can do so even when the account is unenforceable: http://www.wragge.com/analysis_5241.asp#.UmVHPyRXZgc


No, they cannot slap another default for the same account. :nono: However, if there's a balance outstanding, any redress would normally go towards the debt rather than to yourself. In some cases you may get it paid to yourself when the account has been assigned in absolute (sold) to a debt purchaser. Has yours been sold at all? As far as I know, my MBNA account has never been sold, despite MBNA selling most to Arrow over the past couple of years. :noidea:

Hi there, thanks for the reply - yes, A&L card from an original Girobank. The did manage to send a microfiche copy but no T&Cs that related to the account at that time. Default drops off next month, so yes, statue barred

However, I am going to pursue them for PPI, from 1993 onwards. However, if I don't get hold of any statements how on earth do I begin to calculate the amount and interest?

[MIKE770]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

Pitythere is not a copy of the original CCA as it could be compared with what they sent? as a lot are suspect/ poss reconstructed using MBNA bottom signatuary area only?????????? and a code onside stating a load of numbers?

[Angry Cat]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

You will have to claim from Santander!
http://en.wikipedia.org/wiki/Alliance_%26_Leicester

I had an old Girobank account and remember when Santander took over A&L; Santaneder ruined an old fashioned but very good Gov owned Bank:
http://en.wikipedia.org/wiki/Girobank

[Amethyst]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

Is the PPI you want to claim on the same card that you have no CCA for and is just about to fall off the credit record and go stat barred?

What was owing on the card when you stopped payments and requested the CCA ?

[redsue]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

Pitythere is not a copy of the original CCA as it could be compared with what they sent? as a lot are suspect/ poss reconstructed using MBNA bottom signatuary area only?????????? and a code onside stating a load of numbers?

I did get a microfiche of the original document but without all the prescribed terms & conditions. I worked in the artwork dept at MBNA many many years ago so I understand what a lot of the codes mean. But it is the original CCA. Will see if I can dig it out.

Is the PPI you want to claim on the same card that you have no CCA for and is just about to fall off the credit record and go stat barred?

What was owing on the card when you stopped payments and requested the CCA ?

Yes, I have the original signed doc (see above) and yes it's about to drop off credit record. There was about £2000 on the card before requesting SAR and CCA. With charges added ended up approx £4000

[FlamingParrot]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

Pitythere is not a copy of the original CCA as it could be compared with what they sent? as a lot are suspect/ poss reconstructed using MBNA bottom signatuary area only?????????? and a code onside stating a load of numbers?

In this case, it's not really relevant, as it's already statute barred. :bounce:

Hi there, thanks for the reply - yes, A&L card from an original Girobank. The did manage to send a microfiche copy but no T&Cs that related to the account at that time. Default drops off next month, so yes, statue barred

[FlamingParrot]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

You will have to claim from Santander!
http://en.wikipedia.org/wiki/Alliance_%26_Leicester

I had an old Girobank account and remember when Santander took over A&L; Santaneder ruined an old fashioned but very good Gov owned Bank:
http://en.wikipedia.org/wiki/Girobank

Actually, the Girobank accounts became part of the Alliance & Leicester some time in the 90s, then Santander acquired the faltering A&L after the credit crunch, however, the A&L credit cards (as opposed to bank accounts) were sold to MBNA in 2002, although they were still branded A&L and still showed up on the A&L systems till 2009, when Santander took over the bank accounts, at which point the cards were rebranded MBNA, who increased the interest to nearly 36% and sent out new cards with their name to replace the A&L ones.

My account also started as an old Girobank account from the early 90s followed by a credit card. I came across a letter dated 2002 stating they'd been sold to MBNA even when the branding was still A&L. :nerd: :nerd: :nerd:

[FlamingParrot]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

However, I am going to pursue them for PPI, from 1993 onwards. However, if I don't get hold of any statements how on earth do I begin to calculate the amount and interest?

Someone please correct me if I'm wrong, but if the debt is still with the original creditor (MBNA) and hasn't been sold to a DCA, any PPI reclaim would go towards the outstanding balance, even if the debt is statute barred. SBd means it cannot be recovered through the courts, but in England and Wales, the debt still exists even when SBd (your profile says you are in England).

I do hope I'm wrong, because my own MBNA card also had PPI... :noidea:

[Angry Cat]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

Okay, interesting that MBNA serviced the old A&L cards.
As I said, I actually had an old Girobank account and remember when A&L took the accounts over; a shambles...

So, who sold the PPI to redsue if she had her card when her Girobank account was live?
Surely it wouldn't have been MBNA or, am I missing something?

Furthermore, if the account wasn't sold; charged off, why not?

Sounds like fun, not!

[redsue]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

Okay, interesting that MBNA serviced the old A&L cards.
As I said, I actually had an old Girobank account and remember when A&L took the accounts over; a shambles...

So, who sold the PPI to redsue if she had her card when her Girobank account was live?
Surely it wouldn't have been MBNA or, am I missing something?

Furthermore, if the account wasn't sold; charged off, why not?

Sounds like fun, not!

Yes, MBNA pitched and won the credit card portfolio from A&L, I was involved in that process at the time. But when they won the business of those accounts they took over all ownership and responsibility for the acquired accounts. So although MBNA didn't sell me the PPI they took over the responsibility for doing so (I believe).

They took the payments for it! I recently won PPI from an Egg CC but because Barclaycard took over the business, they paid out the reclaimed PPI.

I know the payment would come off any outstanding balance its just that 14 years of PPI payment from 1993 at compounded interest maybe worth more than what is owed.

If it's not worth it, I'll just be happy to get rid of the default - they never took me to court or sold the debt as the agreement was unenforceable. However, part of me would like to have the last laugh for them applying the default

[FlamingParrot]

Re: Wrongful default drops off next month. Can I sue MBNA for defamation of character

I agree with the idea that, although MBNA didn't mis-sell the PPI, they acquired all the duties and responsibilities when they bought the accounts, as the A&L previously did when they bought the Giro accounts and now Santander with the current accounts.

You won't get rid of the default before the 6 year period regardless, on McGuffick v RBS it was established that reporting to the CRAs does not amount to enforcement, meaning they can still record a default regardless of whether there is a valid agreement or not. Selling the debt does not amount to enforcement either and debts can be sold even if they are unenforceable. Debt purchasers buy them in bulk without details or paperwork, they even buy statute barred debts. Most MBNA accounts were sold to Arrow over the past couple of years, except mine, which seems to have gone into limbo, as I haven't heard from anyone in 2 years and was never even passed to an external DCA for collection. :noidea:

I was paying PPI all the time, don't know for sure when I took out the card as there is no agreement but it may have been at around the same time as yours, I know I already had it in 1995, so could be 20 years ago. Mine's not SBd till Jan 2016, if you succeed with your PPI reclaim and end up being quids in, I will be inclined to take a leaf out of your book. :thumb: