Mbna Default ?????

Hi All
My Hubby received this letter from MBNA to day.

A DEFAULT is due to register for SIX YEARS on your credit file in the next few days in relation to the above account. This will seriously affect your ability to gain ANY form of credit in the future.

When the default is registered, the balance on your account will be SOLD to a third party.

This means that:-

1. You will no longer be a customer of MBNA.
2. The responsibility for recovery of the outstanding balance will be solely that of a third party.
3. The Default registered against you will be transferred into the name of that third party.
4. The Thirtd Party will take actions they deem appropriate to recover the full outstanding balance.

To prevent this from happening you must make an IMMEDIATE PAYMENT of £xxxxxx by debit card payment today. Please call xxxxxxxxxx to clear your outstanding arrears and discuss your repayments.

Please contact one of our account managers immediately. They will be available Monday to Thursday..................etc etc

Now, he has never received a DEFAULT notice from them so how can they DEFAULT him in a few days.

He also believe this letter is a HARRASSMENT letter and is threatening.

What action does he take! before this debt is sold on!!

This matter needs urgent attention, so anyone with help on this matter would be appreciated.

Thanks
DS

[Amy]

Re: Mbna Default ?????

Firstly, does he owe the money?

Secondly, is the account in dispute?

If the answer to the first question is 'yes' - does he pay anything towards this debt?

[strangewayofsavin]

Re: Mbna Default ?????

lets hope the new company have the original CCA or a legitimate copy

[TUTTSI]

Re: Mbna Default ?????

A CCA request was made on 17th August 2007 and on 28th August 2007 a SAR request was sent to them. Both sent by recorded delivery and both signed for.

On 30th August 2007, they registered a default with the CRA's.

My hubby has had two eye ops this summer and almost lost his sight in one eye, this has restricted him from working at full pace. Thankfully, he is now on the mend and is trying to catch up with the mountains of debt during this period. The SAR was extremely comprehensive and they have a lot of documents etc to send, a tall order I would have thought!

He has checked his file with MBNA and cannot find an agreement under CCA, he generally keeps everything and I should not think for one moment that he would have thrown it. So I think they will have a hard time to produce a true copy of an orginal.

What I want to know is can they issue a default, when a correct default notice was definately not issued, and whilst a CCA and a SAR request had been issued and was in their hands at the time the defaulted him.

Any help much appreciated.
Thanks
DS

[TUTTSI]

Re: Mbna Default ?????

This is the response my hubby's received to day from MBNA, from the Customer Advocate Office Manager following his complaint to Donna Pumfrey.

1. They did not issue a DEFAULT NOTICE only a letter stating that that a Default was due to register - see post 1.

2. They were in receipt of a CCA request and a SAR at the time they registered the DEFAULT against him.

3. They have sent a response to the CCA request, which was received this week and what they have sent to him is a copy of the original credit card application form, also what they refer to as Terms and Conditions was a blanket credit card agreement Regulated by the CCA 1974, but not an executed agreement. The agreement they sent did not show his name, account number, signature of all parties and an executed date, they also enclosed a recent statement of account. This cannot be correct! What is his next move and plan of action?

Please someone help......
DS


Account: XXXX XXXX XXXX 2190

I write regarding your recent email to Donna Pumphrey. I was sorry to learn that you are unhappy with the administration of your account. I have now completed my investigation into your complaint, and would like to take this opportunity to outline my findings.

Firstly, with regard to the Subject Access Request you made; we are permitted a period of 40 days in which to collate and send the information to you. We will issue this by 3 October 2007, which is the deadline for the statutory period allowed for a Subject Access Request to be completed.

The information you requested under section 78 of the Consumer Credit Act 1974 has been sent to you on 14 September 2007; I trust that you will have received this by now.

Unfortunately, I am unable to amend your credit file and remove the default that has been registered. The request for a SAR does not override our obligation to report factual information to the credit reference agencies. If a lender did fail to comply with S.78, that lender may be prevented from taking certain steps to enforce a credit agreement (until such time as S.78 was satisfied) – but the underlying credit agreement itself, together with the borrower’s obligation to repay, would remain valid and intact.

A letter fulfilling the requirements of a Notification of Default is automatically issued to every account that reaches three payments in arrears; we do not default accounts until they reach seven payments in arrears. Therefore, I cannot agree that we have failed to issue the required notification.

MBNA is not able to stop processing your personal information. This is not only due to the reasons above, but also because the use of credit reference information is an integral part of the maintenance of your credit facility and the management of credit card accounts.

Should you have any further queries please contact my colleague Kate Baldwin, on 01244 672915 (Monday to Friday, 9am to 5pm). I am also enclosing a copy of “Our Commitment to You” leaflet, which explains our complaint handling process in greater detail. If we do not hear from you within eight weeks of the date of this letter we will assume that the matter is closed.

[iancognito]

Re: Mbna Default ?????

Hmmm, bit of a tough one, this is my opinion, others may vary:

• Sending a CCA request or SAR does not put an account in dispute, action as a result of either/both does, i.e. if they do not provide the agreement or there are charges to dispute.
• They do not have to provide a copy of your signed agreement when you send them a CCA request, I believe a copy current at the date the agreement was taken out is acceptable, to enforce an agreement in court, they must provide a copy of your original agreement, signed by both parties and containing all the prescribed terms. Having said that, I'm still not convinced the court would always come down on your side even if they didn't, we've seen some strange decisions.
• There is no legal obligation whatsoever for them to provide any information to CRA's, it is a purely commercial decision, CRA's have no legal standing whatsoever and are commercial companies.
• There IS a requirement under the CCA to send out a default notice, let me know if you can't find it, I'll have a look (sorry haven't got time now) but I think the notice in the first post is an acceptable notice?

Sorry if it's not the info you wanted, the above is from my own personal experience and research so I'm not saying it is necessarily spot on.

The best way to go with this is probably the charges route, with removal of the default as part of the claim, on a brighter note, they can't sell the debt while the account is in dispute so he needs to send a prelim letter straight away.

[thephoenix]

Re: Mbna Default ?????

Account: XXXX XXXX XXXX 2190

I write regarding your recent email to Donna Pumphrey. I was sorry to learn that you are unhappy with the administration of your account. I have now completed my investigation into your complaint, and would like to take this opportunity to outline my findings.

Firstly, with regard to the Subject Access Request you made; we are permitted a period of 40 days in which to collate and send the information to you. We will issue this by 3 October 2007, which is the deadline for the statutory period allowed for a Subject Access Request to be completed.

The information you requested under section 78 of the Consumer Credit Act 1974 has been sent to you on 14 September 2007; I trust that you will have received this by now. get proof they have sent it.

Unfortunately, I am unable to amend your credit file and remove the default that has been registered. So it's an automated process then. The request for a SAR does not override our obligation to report factual information to the credit reference agencies.It does if the information your processing is unwarranted. If a lender did fail to comply with S.78, that lender may be prevented from taking certain steps to enforce a credit agreement (until such time as S.78 was satisfied) – but the underlying credit agreement itself, together with the borrower’s obligation to repay, would remain valid and intact. no agreement, no account, no monies owed. (if any).

A letter fulfilling the requirements of a Notification of Default is automatically issued thanks for the clarification to every account that reaches three payments in arrears; we do not default accounts until they reach seven payments in arrears. So the default entry should of been issued 4 months after the AUTOMATED NOTIFICATION OF DEFAULT. Therefore, I cannot agree that we have failed to issue the required notification. Cough cough s.12 DPA 1998

MBNA is not able to stop processing your personal information. This is not only due to the reasons above, but also because the use of credit reference information is an integral part of the maintenance of your credit facility and the management of credit card accounts. providing it's lawful, warranted, not harmful, and does not contravene the DPA 1998,, which, on the face of it... it does.



Can I just ask,
when did they sign for your COA request?
What is the date of the letter you mentioned in your first post?

They mention that the s.78 request was sent to you on the 14th Sept.
All out going mail is logged, ask them to prove it was dispatched from their office and send you the proof.

[TUTTSI]

Re: Mbna Default ?????

Account: XXXX XXXX XXXX 2190

I write regarding your recent email to Donna Pumphrey. I was sorry to learn that you are unhappy with the administration of your account. I have now completed my investigation into your complaint, and would like to take this opportunity to outline my findings.

Firstly, with regard to the Subject Access Request you made; we are permitted a period of 40 days in which to collate and send the information to you. We will issue this by 3 October 2007, which is the deadline for the statutory period allowed for a Subject Access Request to be completed.

The information you requested under section 78 of the Consumer Credit Act 1974 has been sent to you on 14 September 2007; I trust that you will have received this by now. get proof they have sent it. Yes this was received this week, but to re-itterate they have failed to supply the true copy of the CCA agreement.

Unfortunately, I am unable to amend your credit file and remove the default that has been registered. So it's an automated process then. Looks that way!! hopefully the SAR might show something....I am clutching at straws here. The request for a SAR does not override our obligation to report factual information to the credit reference agencies.It does if the information your processing is unwarranted. Here Here...If a lender did fail to comply with S.78, that lender may be prevented from taking certain steps to enforce a credit agreement (until such time as S.78 was satisfied) – but the underlying credit agreement itself, together with the borrower’s obligation to repay, would remain valid and intact. no agreement, no account, no monies owed. (if any). So far no agreement.... so now what!

A letter fulfilling the requirements of a Notification of Default is automatically issued thanks for the clarification to every account that reaches three payments in arrears; we do not default accounts until they reach seven payments in arrears. So the default entry should of been issued 4 months after the AUTOMATED NOTIFICATION OF DEFAULT. Therefore, I cannot agree that we have failed to issue the required notification. Cough cough s.12 DPA 1998what does this mean!

MBNA is not able to stop processing your personal information. This is not only due to the reasons above, but also because the use of credit reference information is an integral part of the maintenance of your credit facility and the management of credit card accounts. providing it's lawful, warranted, not harmful, and does not contravene the DPA 1998,, which, on the face of it... it does.



Can I just ask,
when did they sign for your COA request? CCA request was signed for on 21st August
What is the date of the letter you mentioned in your first post? 14th August

They mention that the s.78 request was sent to you on the 14th Sept.
All out going mail is logged, ask them to prove it was dispatched from their office and send you the proof.

Yes this was received this week, but as I said earlier they have not supplied the true signed CCA agreement. So from where I am sitting they have no right to add a default to his account.

I thought the SAR and the CCA requests would stop any activity until the dispute is resolved!!

What is the game plan now!

DS

[thephoenix]

Re: Mbna Default ?????

lets get this out of the way first:

12 Rights in relation to automated decision-taking

(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.
(2) Where, in a case where no notice under subsection (1) has effect, a decision which significantly affects an individual is based solely on such processing as is mentioned in subsection (1)—
(a) the data controller must as soon as reasonably practicable notify the individual that the decision was taken on that basis, and
(b) the individual is entitled, within twenty-one days of receiving that notification from the data controller, by notice in writing to require the data controller to reconsider the decision or to take a new decision otherwise than on that basis.
(3) The data controller must, within twenty-one days of receiving a notice under subsection (2)(b) (“the data subject notice”) give the individual a written notice specifying the steps that he intends to take to comply with the data subject notice.
(4) A notice under subsection (1) does not have effect in relation to an exempt decision; and nothing in subsection (2) applies to an exempt decision.
(5) In subsection (4) “exempt decision” means any decision—
(a) in respect of which the condition in subsection (6) and the condition in subsection (7) are met, or
(b) which is made in such other circumstances as may be prescribed by the Secretary of State by order.
(6) The condition in this subsection is that the decision—
(a) is taken in the course of steps taken—
(i) for the purpose of considering whether to enter into a contract with the data subject,
(ii) with a view to entering into such a contract, or
(iii) in the course of performing such a contract, or
(b) is authorised or required by or under any enactment.
(7) The condition in this subsection is that either—
(a) the effect of the decision is to grant a request of the data subject, or
(b) steps have been taken to safeguard the legitimate interests of the data subject (for example, by allowing him to make representations).
(8) If a court is satisfied on the application of a data subject that a person taking a decision in respect of him (“the responsible person”) has failed to comply with subsection (1) or (2)(b), the court may order the responsible person to reconsider the decision, or to take a new decision which is not based solely on such processing as is mentioned in subsection (1).
(9) An order under subsection (8) shall not affect the rights of any person other than the data subject and the responsible person.

[thephoenix]

Re: Mbna Default ?????

CCA request, according to the CCA 1974, they have 12 working days to produce the documents. If they default, they have a further 30 calender days to produce the prescribed executed agreement to the courts, if they wish to proceed with the collection of any such debt. If after the 30 calender days, they are still in default, it becomes an offence under said act, if they continue to chase you for the debt.

CCA received 21st August
That gave them until 7th Sept to produce the doc's.
Now, under the act, they need to produce the correct documents to a judge and obtain a court order if they want to collect any money owing.
After the 8th Oct, it then becomes an offence under the act to pursue the debt.

But the issue is, What is the prescribed form of a credit card agreement? The act state's ' shall give the debtor a copy of the executed agreement (if any) and of any other document...' That's the bit that's always confuzzeled me.
this is a credit card were talking about???

Was it an unsolicited agreement?
how old is the account? did you get a copy of the original agreement, every time a new card was issued?? (after the first)

[TUTTSI]

Re: Mbna Default ?????

CCA request, according to the CCA 1974, they have 12 working days to produce the documents. If they default, they have a further 30 calender days to produce the prescribed executed agreement to the courts, if they wish to proceed with the collection of any such debt. If after the 30 calender days, they are still in default, it becomes an offence under said act, if they continue to chase you for the debt.

CCA received 21st August
That gave them until 7th Sept to produce the doc's.
Now, under the act, they need to produce the correct documents to a judge and obtain a court order if they want to collect any money owing.
After the 8th Oct, it then becomes an offence under the act to pursue the debt.

But the issue is, What is the prescribed form of a credit card agreement? The act state's ' shall give the debtor a copy of the executed agreement (if any) and of any other document...' That's the bit that's always confuzzeled me.
this is a credit card were talking about??? Yes it is

Was it an unsolicited agreement? What does this mean?
how old is the account? did you get a copy of the original agreement, every time a new card was issued?? (after the first)

The original application was dated 26/10/1996. Each time a new card was issued they would only send their standard T & C's like you get when a bank updates it T&C's on a current account.

In addition when they responded to the CCA and sent documentation the speciman/template type agreement that they enclosed, they reffered to in their letter as terms and conditions. I do not believe that T&C's can be construed to be an executed agreement. It does not have any name, any account no, any signature of both parties or a date. Nor does it have an agreement no.

I await hearing from you.
DS

[thephoenix]

Re: Mbna Default ?????

well it seems as though they have defaulted on the CCA request. the agreement has to be the executed agreement in the prescribed form.
I don't think an application or aspeciman/template type agreement would suffice.

The reason i mention the issue of the agreement when you got a new card is:

85. Duty on issue of new credit-tokens.
— (1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.
(2) If the creditor fails to comply with this section— (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.


(3) This section does not apply to a small agreement.

Again, it uses the words ' IF ANY '.........

Anyway, slightly off the original query now.

MBNA have stated in an email, that the notification of default is basically issued after 3 months of non payments. which you say you got on the 14th August. They then went on to say that the default notice is not issued until 7 missed payments.
But then goes on to say "Unfortunately, I am unable to amend your credit file and remove the default that has been registered."
So to me they are processing unwarranted and inaccurate data, and pursuant tos.10 & s.12 of the DPA, it should be removed.

Someone more knowledgeable should be around soon to advise on your next action. I just thought i would give somethings to think about.

[TUTTSI]

Re: Mbna Default ?????

Thanks ever so for your help this evening and I await hearing from someone as to what action now needs to be taken to remedy this situation.

Obviously a letter needs to be written to MBNA and others once in receipt of the SAR response and past the CCA deadline of 8th October. Also, in with this is the question relating to the actual default that they refer to, and my understanding of this in simple terms is that for regulated agreements less than £25K, and where the consumer has defaulted, the only remedy open to the bank to put pressure on the Consumer to pay is by serving the legal notice under section 87.1 CCA 1974, and not the way for example MBNA have stated that a letter fulfilling the requirements of a Notication of default being automaticaly issued to every account that reaches 3 payments in arrear. In their email they have not referred to s.87.1 at all and so they seem to have failed to follow the correct protocol in notifying the CRA.

Ds

[thephoenix]

Re: Mbna Default ?????

the notification of default is the letter you received on the 14th August. Doesn't matter that it was automated, providing they demonstrate that the issue is warranted.
The question i have, is they say the default has already been registered.
Now according the MBNA's time period for issuing these notices, one should not of been issued until December 14th ish.

Give these guy's a ring regarding your SAR

Bill Wareing 01244 672 348

Colin Pugh 01244 672 989

Colin will be your best bet but if you speak to Bill first and explain the default query ( only the timing of it and DON'T mention the CCA) and SAR he will kick Colin up the jacksy and speed things up a bit.

[TUTTSI]

Re: Mbna Default ?????

Sounds like you know these guys. What job titles do these guys have and why is it better to speak to Colin first! what is your reasoning. Why do I have to ring regarding the SAR, they said in the email that they will send it before the deadline. After all 8th October is not too far away.

If I speak to Colin can I explain the default query with him as well.

I have asked for an awfull lot of data with the SAR so me thinks that they have loads to get on with.

DS