Thread: EGG Microfiche agreement

After much letter writing the OH finally received a reply to her second Egg card cca request.

Apart from the 'agreement' stating the 'Approved' limit as opposed to the correct prescribed term 'Credit limit', the agreement they have sent is a photocopy of a microfiche slide.

Can this be classed an enforceable agreement as it can clearly be read (leaving the approved limit aside), it dates from c.2001.

As always

Beachy

Can anyone advise me as to whether a (readable) microfiche copy of an agreement can be deemed enforceable, want to throw something more than just 'approved limit' at them.

Beachcomber, have a look at the link below where PT2537 outlines what he thinks is wrong with Egg Card Agreements. He is highly qualified in the field of litigation. This should give you more pointers to throw at them.

http://www.consumeractiongroup.co.uk...ents-what.html

Hiya Beachy,

Yes good post above, and if it ever went to court you can use the Civil Evidence act 1995 to make them prove its authenticity.

Have a look at this by Alanalana

http://www.consumeractiongroup.co.uk...ml#post1743527

Regards

PF

i dont think if law correctly applied they should be able to get away with Microfilch copies!As you say when it suits them bankers will say a copy will do when trying to harrass someone into paying an unenforcabe agreement but they soon change their tune and say a copy will not do when it comes to anything else concerning their banking,As i saw on another forum this point was made - A copy birth certificate is unacceptable to obtain a pass port and driving licence.A copy of divorce papers is not acceptable to obtain a passpoert or driving licence ,A copy of land deeds are not acceptable as proof of ownership of land and you cant send a copy of your driving license to prove you passed your test even if you swear on oath to say you have passed it.You must produce the original,So why should this be any different for something as importand as a credit agreement? .It can be argued on this basis that a copy of an agreement is not acceptable as proof of a debt!so this argument can be brought out in court as well and which i will be doing

http://www.consumeractiongroup.co.uk...re-they-5.html This thread of BRW goes over some useful points when banks try and rely on microfilch copies!

Aso as that thread pointed out banks are very reluctant to accept faxed copies of documents themselves so why should it be differennt for us!

Originally Posted by sunflower99

i dont think if law correctly applied they should be able to get away with Microfilch copies!As you say when it suits them bankers will say a copy will do when trying to harrass someone into paying an unenforcabe agreement but they soon change their tune and say a copy will not do when it comes to anything else concerning their banking,As i saw on another forum this point was made - A copy birth certificate is unacceptable to obtain a pass port and driving licence.A copy of divorce papers is not acceptable to obtain a passpoert or driving licence ,A copy of land deeds are not acceptable as proof of ownership of land and you cant send a copy of your driving license to prove you passed your test even if you swear on oath to say you have passed it.You must produce the original,So why should this be any different for something as importand as a credit agreement? .It can be argued on this basis that a copy of an agreement is not acceptable as proof of a debt!so this argument can be brought out in court as well and which i will be doing

I love it sunflower

I will find your thread and read it with interest. Surely a microfilch could be acceptable in certain circumstances? Don't get me wrong I dare not disagree with that statement.

Pedross

Thanks sunflower

well i am going to use those arguments in court!

Also as that thread pointed out banks are very reluctant to accept faxed copies of documents themselves so why should it be differennt for us!

Hi
I am new to this site and was looking through your posts. I have an MBNA/Virgin credit card. They put my interest up last year on £14,000 and I just seem to be paying interest and not getting anywhere with reducing the debt. I have asked them to reduce the interest but of course this does not happen.
My credit card was opened back in 1993 and I have asked for the terms and conditions. They sent me a photocopy of a microfiche slide and a copy of my supposedly lastest T&C but there is no name, no reference on the lastest T&C and only has my address. It could belong to anyone else at this address who has an MBNA card. Is this valid?
Have you had any success with them? Appreciate anyone who can help me.

Thanks

when you say a microfiche slide, i assume you mean a picture of your application form. This will have a whole load of stuff on it, but not a term prescribed by the CCA 1974? These are rate of interest, repayment schedule/ arrangements and credit limit (or how it will be worked out/ notified to you) - for these you will have to go the T&Cs that you refer to. If so, deary me, they really arent trying very hard. I would put that away carefully if I were you.
A lot of banks got into the habit - save space? - of photocopying application forms, but usually only the front part - the t&cs are on the reverse, so they have a problem trying to show the prescribed terms were in fact part of the document when they come to try to enforce since s61 (1)(a) needs the above prescribed terms to be on the signature document and if they cant show that then s127 (3) means the court cant issue an enforcement order.
What they have sent you strikes me as a pretty poor attempt. In the past they have at least tried to produce an application form and a set of T&Cs which "look" (or so they claim) as if they belong together. In your case they dont even seem to have tried.
What to do? I would write back pointing out that - and I am assuming this is the case - the microfiche slide doesnt have the required prescribed terms on it and as such would be unenforceable (they need to show that the prescribed terms were there at the time you signed up, not 15 years later!) and that you require the T&Cs from when the account was opened. Its unlikely that they still have these, but they will probably send you something, and then its a matter of judgement of whether they really do belong to what they have already sent you (are they the same size/ do they use the same font/ do they have the same document number etc). As I say, its unlikely that they will come up with anything all that convincing, but dont expect that to put them off - they will still try to hassle you, though whether they would seek court enforcement, especially if it sounds like you know your rights and your way around, is quite uncertain.
Do a search for Moragh - this was a case with issues much like those you might come up against.
Hope that helps

Hi seriously fed up
Thank you for your reply. I really appreciate it!
Sorry for not replying sooner as have been away (work) and just got back. I have scanned the reply that MBNA sent me when I asked for my T&C (have removed most personal information). All the scans are on photobucket site: s790.photobucket.com/albums/yy187/moneemc/MBNA/

I would really appreciate if you could kindly have a look and let me know if all they have done is photocopied the application forms, with the t&cs are on the reverse. Also I realised the card is from 1997 not 1993 as I originally said. I am mainly interested in getting them to freeze interest so that I can catch up on payments. Again appreciate any help and advice you can give me.

That one depresses me a wee bit, I'm afraid. MBNA have form for sending application forms with T&Cs that couldnt possibly be linked - you know, different size sheets of paper/ different fonts/ layouts that couldnt possibly have anything on the reverse. But what you have put up (forget about the current ones) looks, from their pov, pretty good. It looks to me like a mailer, where you put your details on one side, stick it up (gummed edges) - their address and the T&Cs there are are on the other. This looks clearly like one of those - same format (landscape) and size (it looks from the scans you have sent) - so they will claim that there is an executed agreement in existence as your signature and the prescribed terms (rate of interest, credit limit or how worked out and repayment arrangements) are all in the one document. Its quite unusual for them to have kept both sides - for many banks, including MBNA the normal practice was just the side with your personal details on it (the side you have signed) and, as above, they send you some random set of T&Cs (if they mentioned these things at all - some didnt).
So what to do? Have to say this isnt great IMO (others may take a different view and I would be pleased to be proven wrong). The one authority I have come across is this from Consumer Law by Professor John Keith Mcleod , barrister, professor of law, 2002 Edition,
"To clarify concerning 61(a) of the CCA 1974: This section clearly requires that a regulated agreement including a credit token agreement must comply with the following requirements; 1. it must be in the prescribed form as to the Agreement Regulations. 2. On the SAME side as the signatures, the document itself must contain the terms prescribed in the agreement regulations (reg 6(1)): the credit limit, the rate of interest and a term stating how the financial obligations of the debtor is discharged and these must be stated together as a whole that will ensure that the larger list is included in the actual agreement rather than any document referred to in it. The regulation makes it clear that the absence of these terms takes an agreement outside the dispensing power of the court. Now to explain what S61(b) means: The document embodies all the terms of the agreement, other than the implied terms. This section requires that the regulated agreement contains or refers to all the express terms of the agreement ( NOT THE PRESCRIBED TERMS!!) the T&C's." Now to go further: This is called the required terms and it is these terms (and NOT the PRESCRIBED TERMS) that are what is referred to on the NON-SIGNATURE side (the reverse) this is to COMPLY with S.189(4) 'embodies' the terms required by the Agreement regulations so that they must either be in the agreement OR in adocument referred to in it. So the PRESCRIBED TERMS MUST BE ON THE SAME SIDE AS THE SIGNATURES. If the agreement refers to anything 'overleaf' then it is referring to basically T&C's" ENDS
Now, as is quite clear, what they have sent you does not fulfil McLeod's view of what is required - your sig and the prescribed terms are not on the same side of the sheet of paper. Basically, I think the notion, when the Act was passed, was that the prescribed terms (which were the fundamental aspects of the bargain - how much credit, how much will it cost and how do I pay it back?) should be in front of the borrower when they signed up. However, courts are taking the view - and this was put particularly strongly in Carey v HSBC that they should be in the same document, and it would be difficult to argue that the other side of the same piece of paper is not the same document. Then again, take yourself along to your local M&S and pick up a copy of their credit card application and you will find that on the page you sign, the prescribed terms are on the same page. They do learn - albeit slowly.Also

1. all they have is a photocopy (honest your honour it looks like this - though even the post office stamp above their address is a problem here as its the right date for when you signed it)
2. you could quote McLeod at them, though how much weight its going to carry is questionable.

But, my view would be that from your perspective this could be better. Had they sent just the sheet with your sig and some random set of T&Cs I would be much happier for you. But you could quote McLeod at them, and that industry practice is surely to have the signature and prescribed terms on the same side of the page (quote M&S at them here) and see how far that takes you. About the best I can think of. Sorry!
One other thing - have they defaulted you yet? Did they send a DN and was it compliant with requirements? That's one other thing to watch out for

Thank you for your very in-depth response. I was hoping you were going to say it is unenforcable but what a pity it is not.
I will try writing to them quoting M&S. I am just a little surprised that the T&C they sent me (page 8) only has my address and nothing else on it. I would have thought that they need to at least have my name or a reference number on it. I actually have a T&C from them from 2005, which seems to be the latest T&C they sent me and that has my name and credit card number on the front page. Also, I know that this is the last T&C they sent me and looks nothing like the T&C they have sent me recently when I requested for them. Can I point htis out to them?
I have not defaulted on any of my payments. As I mentioned before, I am paying the minimum payment and only seem to be paying interest off and do not seem to be making much headway getting the capital down! I really want to be debt free but do not want to do this by going into any debt management plan or anything else that will affect my credit rating.
Thanks again.

What they have done the first time is what some of lenders are suggesting is required in the decision of Carey v HSBC - just a computer dump of t&cs with your name and address typed at the top, and then they pretend this is your executed agreement when its nothing of the kind. Carey mainly concerned a s78 request which is essentially about information for the debtor - its not about proof and its not about enforcement. If that was all they had, then I would have suggested telling them to take a hike, but what they have sent you this time round (the signed document with what looks like the T&Cs from the reverse) is rather more worrying, as that well might be enforceable.
Actually what Carey requires - even for an "information" request under s78 - is the original terms (though not necessarily signed) and the current ones, along wilth arguably all the changes in between (though that last part may be pushing it a bit). But to enforce, the document with your sig and the T&Cs (including prescribed terms) on the back would probably be enough imo.
You have to decide what to do next. Actually the fact you are up to date (even though as you say, all you are doing is making a regular interest only payment - I remember with pain what that was like) is to some extent working against you. You are a good guy who has been giving them no trouble. Be in no doubt that to setttle MBNA will be looking to extract every last penny that they can and you seem like a good target BECAUSE you are up to date. On the other hand, if you have missed payments, sent them legally problematic letters etc, you are a bit of a "problem" for them, and in these circumstances they might settle for a reduced F&F offer. You might want to think about that now (if you are financially able to do so) - there are letters on here, but basically its "have financial problems, cant keep up commitments, have scraped this - say 50% - together and offer it in Full and final settlement". Would they buy it? In your case, right now, I suspect not. What that would do, though,. is send them all manner of danger/ warning signals. MBNA can be a real serious pain with threatening letters and phone calls (just read through some of the sections specifically on MBNA and you will see what i mean) - I would hesitate to say they are the worst, but they are toward that end of things. So, I wouldnt suggest going down that road unless you are prepared for them (one immediate thing is NEVER speak to them on the phone - they are unpleasant and tricky - all the more so as you work your way up their enforcement process). If you own your own home, what they might do at the end is to look to get a charging order so that they get a share of the proceeds when you come to sell. On the other hand, if you are able to put up a fight, then they might sell your account to someone else, who, since they will have bought it for 10p-30p in the pound, might be more willing to accept a lower payment. But as before, i have to say with the docs they have sent you, this could be tricky. Also, if you dont keep your payments up, they will trash your credit record and you might find it difficult to get credit elsewhere - though you can in due course get over that - but it takes time.
I am really sorry I cant be more encouraging

Thank you for your reply and for taking the time to go through my T&C. I really appreaciate what you have done and for your honesty.
As you say I am one of the "good guys", never once have I been late with my payments and never defaulted in any of my other cards. I have always paid my loans and my debts in full. It looks like now I am going to be paying MBNA for a long while yet! Just seems a little unfair and I feel stupid for having fallen into their trap.
Keep up the good work on this site. Thanks again.