MBNA - Aktiv Kapital x 2

[CleverClogs]

Re: MBNA - Aktiv Kapital x 2

Of course, that is what they must do. Because, they have not complied under the requirements of "the Act".

Terms & Conditions as well, if you please!

They may have sent assorted sheets of Terms and Conditions and it is even possible - though hardly probable - that one of those sheets could have been of the T&C applicable when the agreement was made but, without even an attempted reconstitution of that agreement, it would be impossible to say.

[JammyDodger41]

Re: MBNA - Aktiv Kapital x 2

Thanks all ! Clever Clogs I have only received the info mentioned in the thread which doesn't amount to very much.

Should I just ignore them or respond to yesterdays letter? My guess is I should respond in which case can someone please give me an example of any specific wording I should be using, other than just "get knotted"?!!

Also had a letter yesterday re MBNA number 2 butt hey say they are still searching for information on that account. So I will sit and wait .

[Angry Cat]

Re: MBNA - Aktiv Kapital x 2

Tell them politely to, get knotted!:
EDIT TO SUIT:-

Your Reference: XXXXXXXX

ADDRESS XXXXX

ACCOUNT IN DISPUTE

Dear XXXXXXXXXXX

I DO NOT ACKNOWLEDGE THIS OR ANY DEBT TO YOUR COMPANY WHATSOEVER; ALLEGED ACCOUNT IN DISPUTE

Thank you for your letter and enclosed documents dated XXXXXXXXXXXX, which was in response to my legal Section 78 Consumer Credit Act 1974, ‘Request’.

Unfortunately, the documents that you have supplied, does not fulfil your obligations under Section 78 of the Consumer Credit Act 1974, the (“Act”).
You have provided me with XXXXXXXXX, this is referred to as a credit agreement regulated by the Consumer Credit Act 1974.

You have also provided a copy of the financial and related conditions which I assume you assert are connected to the credit card. This document cannot be considered as a credit agreement regulated by the Consumer Credit Act and [omit] (the following if not relevant) because it is not signed by MBNA (Europe) Bank Limited, it is not sufficient to comply with section 61(a) and section 127(3) of the Consumer Credit Act 1974.

Therefore, it is my position that the credit agreement entered into failed to comply with the Consumer Credit Act 1974. The agreement is a regulated agreement and is for the provision of running account credit within the meaning of section 10(1)(a) of the Act. Pursuant to section 61(1)(a) of the Act such an agreement must be in the prescribed form and contain all the prescribed terms.

By Schedule 6 of the Consumer Credit (Agreements) regulations 1983 the agreement must contain specified terms. One such term is that agreements for running account credit must contain a term stating the rate of interest on the credit to be provided under the agreement, furthermore the agreement must state the credit limit or the manner in which this is to be determined. Where an agreement fails to comply with the prescribed terms as per section 61(a) of the Act then the agreement will be irredeemably unenforceable. To this end I refer you to section 127(3) of the Consumer Credit Act 1974.

You have failed to supply a copy of the Terms & Conditions at inception of the account; XXXX, instead of which you have supplied a generic template copy of current Terms and cancellation rights that, are not applicable to the aforementioned account.

You have also failed to supply a copy of the original Payment Protection Policy and the Terms of that Policy. (Section 78 CCA: “...and any other document referred to in it.”)

I note that you have supplied me with an incomplete set of statements;
• List the ones that are missing XXXXXXX

Take notice that, XXXXXXXXXXX are in default of my lawful request under section 78 of the Consumer Credit Act 1974, the (“Act”), therefore any attempted enforcement of this alleged debt is barred.
XXXXXXXXXXXXX is also in breach of the Consumer Protection from Unfair Trading Regulations 2008, which could result in both ******** and civil sanctions against XXXXXXXXXXXXX.

I draw your attention to the following:
The Consumer Protection from Unfair Trading Regulations 2008
• AGGRESSIVE COMMERCIAL PRACTICES (REGULATION 7)
The CPR’s prohibit commercial practices which
• By harassment, coercion (including physical force) or undue influence,
HARASSMENT, COERCION AND UNDUE INFLUENCE
• Harassment and coercion are not expressly defined in the CPR’s but include both physical and non-physical, (including psychological) pressure.
FACTORS INDICATING AN AGGRESSIVE PRACTICE
The CPR’s list factors which shall be taken into account when determining whether a commercial practice is aggressive. It is not necessary for all these factors to be present for a practice to be aggressive and therefore unfair (provided that the commercial practice uses harassment, coercion or undue influence).

The factors are:
• (a) Timing, location, nature or persistence,
• (b) The use of threatening or abusive language or behaviour,
• (c) The exploitation by the trader of any specific misfortune, or circumstance, of such gravity as to impair the consumer’s judgement, of which the trader is aware, to influence the consumer’s decision with regard to the product,
• (d) Any onerous or disproportionate non-contractual barriers imposed by the trader where a consumer wishes to exercise rights under contract, including rights to terminate a contract or switch to another product or trader.
• (e) Any threat to take any action that cannot be taken.
POSSIBLE AGGRESSIVE PRACTICES
The examples below assume that the average consumer would or would be likely to take a different decision as a result of the practice(s) described.
• A debt collector, *pressurises existing borrowers/debtors to repay a debt, for example, by contacting debtors at unreasonable times (such as late at night) or at unreasonable locations (such as at work when they have been requested not to). This could amount to harassment, coercion or undue influence. (Timing, persistence, nature and location, exploitation of circumstances – this might amount to exploitation of the imbalance of power between the creditor and debtor, as well as of the specific circumstances of the debtor)
• A debt collector threatens consumers with recovery of money by bailiffs for unenforceable debts, *this could amount to harassment, coercion or undue influence. (Exploitation of circumstances and threat to take action which cannot be legally taken).
• *Additional examples of unfair (including aggressive) debt collection practices can be found in the Office of Fair Trading Debt collection guidance – OFT 664.
• *this could also breach the prohibitions on misleading actions as well as the prohibition on aggressive practices.

I would also draw your attention to the fact that, MBNA (Europe) Bank Limited subscribed to the new Banking Code of Practice and as such both you; Link Financial Limited and MBNA (Europe) Bank Limited are; failing to honour commitments made in that code of conduct;

CODES OF CONDUCT
• Enforcers may, where appropriate as a means of seeking to prevent or stop breaches of the CPR’s. enlist the help of those responsible for self-regulatory codes of conduct, or practice, adopted by businesses to govern their dealings with consumers

For the avoidance of doubt, I would again reiterate that, MBNA (Europe) Bank Limited and XXXXXXXXXXX are in default of my Section 78 Consumer Credit Act 1974 ‘Request’

It remains my position that the document that both you and the client; MBNA (Europe) Bank Limited have provided to me, an application form and not a credit agreement, which is not in the prescribed form and does not conform to regulations under Sections 60(1) and 61(1) of the Consumer Credit Act 1974; the document is irredeemably unenforceable under section 127(3) of the “Act” and you therefore cannot enforce it against me.

Take Notice that you; XXXXXXXXXXX are in breach of the OFT Collection Guidelines, the 'CPUTR’s'; I consider this account to be in SERIOUS DISPUTE.

If there is any part of this letter that you do not understand, I suggest that you pass it on to your legal department

Yours sincerely,

[CleverClogs]

Re: MBNA - Aktiv Kapital x 2

Too long!

Dear Sirs,

Thank you for the recent package of what you stated to be "further documentation / further information regarding [an alleged agreement] with MBNA under sections 77 to 79 of the consumer Credit Act.".

Whilst they were of some interest, none of the documents supplied contained a reconstituted "true copy" (or even an untrue copy) of the executed agreement. In short, you have not complied with my request made pursuant to section 78(1) of the Consumer Credit Act 1974 and, until / unless you do, section 78(6) applies and the alleged agreement will remain unenforceable at law.

[Angry Cat]

Re: MBNA - Aktiv Kapital x 2

Too long!

Dear Sirs,

Thank you for the recent package of what you stated to be "further documentation / further information regarding [an alleged agreement] with MBNA under sections 77 to 79 of the consumer Credit Act.".

Whilst they were of some interest, none of the documents supplied contained a reconstituted "true copy" (or even an untrue copy) of the executed agreement. In short, you have not complied with my request made pursuant to section 78(1) of the Consumer Credit Act 1974 and, until / unless you do, section 78(6) applies and the alleged agreement will remain unenforceable at law.

Yes, your precised version should do the trick,CC

But just in case the poor dears still do not understand, the following may be of benefit!?
I came across it in one of my files just the other day. But again, EDIT TO SUIT:


Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974
I note that you have replied to the above by sending a copy of your companies current Terms and conditions I must inform you that this is not sufficient to comply with the act and that your company is still in default.

To clarify:
According to the OFT, and the correspondence from the DTI just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement”

This breach of the agreement can be demonstrated as follows;
As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.”
This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

Before leaving section 180 there are two other sections that should be remembered these are:

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;
And more importantly

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.
You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

The regulations state:
(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy; (b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

It is quite clear what can be omitted from the copy document, what is being overlooked is the part highlighted, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

If your contention that current a set of conditions will suffice is based on section 7 of the copy of document regulations I will clarify this also for you

"7.--(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either- (a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied; or
(b) an easily legible statement of the terms of the agreement as varied in accordance with section 82( 1) of the Act"

The highlightesd section clearly idicates that this infomation is required in additon to the orriginal terrms and conditions contained within the executed agreement and not in place of them.
I am sure that you are aware that the ability to vary a document is dependant upon the permission given by the debtor in the signature document,and this would therefore need to be shown.

To reiterate all terms and conditions should be within the agreement document and and the regulations are explicit in the form in which it is presented.
I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues.

[labman]

Re: MBNA - Aktiv Kapital x 2

CAn someone not write a complete dissertation to send to them?

[CleverClogs]

Re: MBNA - Aktiv Kapital x 2

If there is any part of this letter that you do not understand, I suggest that you pass it on to your legal department

Rather than where it is now - their illegal department? :grin:

[CleverClogs]

Re: MBNA - Aktiv Kapital x 2

CAn someone not write a complete dissertation to send to them?

Well, reminding them of Arkell v Pressdram would probably have the same essential meaning. :grin:

[charitynjw]

Re: MBNA - Aktiv Kapital x 2

Rather than where it is now - their illegal department? :grin:

Illegal, or maybe illegitimate?

[FlamingParrot]

Re: MBNA - Aktiv Kapital x 2

Im back again ! I Have today received a huge envelope from Aktiv Kapital re MBNA number 2. Reads as follows
" We refer to your request for further documentation / further information regardign your agreement with MBNA under sections 77 to 79 of the consumer Credit Act.

Please now find attached the documents provided to us by the original creditor and we now look forward to your proposals for payment within 14 days.

I Have been through the huge pile of papers they have sent, each one is a photocopy of a Virgin MBNA statement from 2011 and a couple from 2012. There is the odd page of payment information, ie interest allocation, how to contact them, making a payment to MBNA and the important information behind a couple of the statements. There is absolutely nothing else included.
I would appreciate your thoughts on my next move or response to this please if possible. Thankyou again.

Should we receive no response from you, the accoutn will be passed to our collections division for further action "

Is there nothing resembling an application form and/or terms and conditions? :confused2:

[JammyDodger41]

Re: MBNA - Aktiv Kapital x 2

Thankyou all !

Nope Flaming Parrot all they have sent in this last package are statements with the payment info ie how to pay etc . The only other information they have sent me is that which I scanned on the 10th June I think it was.I have had absolutely nothing else from them.

[FlamingParrot]

Re: MBNA - Aktiv Kapital x 2

Thankyou all !

Nope Flaming Parrot all they have sent in this last package are statements with the payment info ie how to pay etc . The only other information they have sent me is that which I scanned on the 10th June I think it was.I have had absolutely nothing else from them.

I see, have read back and note that you got an application form and some terms, and you replied on that occasion: http://www.legalbeagles.info/forums/...377#post349377

As they haven't really sent anything resembling an agreement, I would just wait for them to pass the account to their collections division as promised, once they write to you again (if they ever do), post up here and we'll sort you a suitable reply. :typing: You've already told them the account is in dispute and why, and they didn't remedy the breach with their latest ream of paper, so your previous communication still stands. :thumb:

[JammyDodger41]

Re: MBNA - Aktiv Kapital x 2

Hi All,

Hope everyone is well. I'm back after a long absence as today a letter has arrived from AK re the larger of my MBNA Acc Number 1. I have heard nothing from them since last year. This letter today, is addressed to us obviously at our home address. It then reads as follows -

" I refer to recent correspondance regardign the above referenced account.

In order to resolve this mater and to assist us with our investigations, please confirm the date you left the address of ............ ? ( the address mentioned is our current address and the one which the letter was addressed to )

A prepaid envelope is enclosed for your convenience and look forward to hearing from you within the next 14 days."

I am assuming that all they are trying to do here is start communication back up again. If by sending the ketter to our adress and we therefore answer it is confirming to them that we still live here. Would you be in agreement with this ? Shall I just ignore this letter please ?

Thankyou again for your help.

[ODC]

Re: MBNA - Aktiv Kapital x 2

Hi All,

Hope everyone is well. I'm back after a long absence as today a letter has arrived from AK re the larger of my MBNA Acc Number 1. I have heard nothing from them since last year. This letter today, is addressed to us obviously at our home address. It then reads as follows -

" I refer to recent correspondance regardign the above referenced account.

In order to resolve this mater and to assist us with our investigations, please confirm the date you left the address of ............ ? ( the address mentioned is our current address and the one which the letter was addressed to )

A prepaid envelope is enclosed for your convenience and look forward to hearing from you within the next 14 days."

I am assuming that all they are trying to do here is start communication back up again. If by sending the ketter to our adress and we therefore answer it is confirming to them that we still live here. Would you be in agreement with this ? Shall I just ignore this letter please ?

Thankyou again for your help.

the choice is yours. Personally I would ignore them. They have not produced anything new.

[JammyDodger41]

Re: MBNA - Aktiv Kapital x 2

Thankyou, that's my thought. they haven't provided me with anything, not been in touch for a nearly a year and am assuming they are just trying to re start communication with us. My plan is to ignore it and see if they send anything else but I wanted to just check with everyone on here as you are far more knowledgeable about these matters !