Please can I have the opinion of some of the CAGERS on here for the attached agreement.

I CCA'd MBNA and received a letter with the attached agreement with the T&C's on the reverse, along with the current T&C's and my current statement.

I am unsure if a credit card needs to show the credit limit and the interest rates are only shown as APR for a set amount of credit.

Your opinion would be really appreciated.

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Hi MBNAslayer

Looking at the pdf IMO the title of this says it all - Priority Request Form -nothing more or less than an application form. There are no prescribed terms & although they have copied T&Cs onto the reverse, nowhere does it refer to them on the front. I think they would struggle to get a court to enforce this.

BTW the method of showing the interest rate is correct.

Foolish girl

Thank you for your opinion.

Would it still be counted as an application form even though it states Credit Agreement Regulated by CCA 1974?

Thanks

It could say the sky was pink with yellow borders but if it hasn't got the prescribed terms in it as required by CCA1974 & the 1983 regs it is simply an application form.

These links may be useful to you:

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

Thanks foolish girl

You say if it doesn't have the prescribed terms then it is not enforcible.

As far as I can see it does have the prescribed terms.

The only issue I can see is that it says Credit Agreement at the top rather than Credit Card Agreement. Also the financial info on the back refers to other T&C's that are not attached. Is this what you mean by the precribed terms.

To confirm it does contain:

1) Signature

2) interest rates

3) amount of credit (states this will be decided upon by MBNA)

4) payment dates

Which part of the document (or what ommissions) what make it unenforcible?

Thanks

 

As far as I can see it does have the prescribed terms.

 

Am I missing something?

I don't see the prescribed terms on the CCA pdf eg. interest rates etc. The T&Cs state those but IMO not only were these not on the reverse of the original but they would have to be specifically referred to on the front page.

 

The only issue I can see is that it says Credit Agreement at the top rather than Credit Card Agreement.

 

Not important re. enforceability

To confirm it does contain:

1) Signature

2) interest rates

3) amount of credit (states this will be decided upon by MBNA)

4) payment dates

 

I can only see these in the T&Cs. Are they anywhere else?

FG

Foolish Girl

The prescribed terms were only on the T&C's that MBNA gave me. When they sent the CCA this was printed on the reverse of the application. Are you of the opinion that they have, shall we say, 'created' a document with the T&C's on the reverse.

I have been thinking about the issues and how the agreement stands up in relation to other 'contracts'.

In contract law for a contract to be valie you must have:

1) Offer

2) Acceptance

3) consideration

4) intention to create legal relations.

The fact I completed an 'application' surely is not an acceptance as no offer has yet been made by MBNA. Therefore this agreement does not meet the requirements of a valid contact.

What are your thoughts?

 

The prescribed terms were only on the T&C's that MBNA gave me. When they sent the CCA this was printed on the reverse of the application. Are you of the opinion that they have, shall we say, 'created' a document with the T&C's on the reverse.

 

Yes, that's exactly what I am saying. Plus the title states that this is a regulated credit agreement i.e. it comes under the provisions of the CCA1974 & should therefore comply with both the act & with the 1983 regs as to its composition & components. IMO it doesn't!

 

Even if (and it's a big IF) the T&Cs were in the reverse of the original applic. it still would still be doubtful if it would fully comply as nowhere on the front does it refer to the T&Cs on the back.

I have been thinking about the issues and how the agreement stands up in relation to other 'contracts'.

 

In contract law for a contract to be valie you must have:

1) Offer

2) Acceptance

3) consideration

4) intention to create legal relations.

 

The fact I completed an 'application' surely is not an acceptance as no offer has yet been made by MBNA. Therefore this agreement does not meet the requirements of a valid contact.

 

You're talking here about contracts in general. This isn't any ordinary contract, this is a regulated credit agreement & falls completely under the CCA1974. Don't let anybody tell you otherwise.

 

Hope that clarifies..

Foolish Girl

Thank you for your opinion. I think I will send an account in dispute letter to MBNA.

At present I have not defaulted but I think I may have to next month as it is now coming down to the choice of paying MBNA or providing for the family. Obviously no question which is the priority!!

Should I stop paying them when in dispute. I do not have any defaults on my credit file at present.

My point about contract law was that I do not think I have entered in to a valid contract with MBNA so therefore they could not enforce it. I guess that is what you refered to when you said that I had signed an application and not an agreement.

Where can I find an account in dispute letter?

Thanks

Hi

Sorry to keep posting. I found the attached PDF on an old post from 2008.

It is an action that was brought by some serial debt avoiders and the judge was none too impressed. However, look at point 28 on the ruling. It states ISSUE 5 - True Copies.

The judge states that the company must produce full agreement once the application has been agreed. Am I therefore correct in thinking that MBNA must supply a copy of the application and the proper CCA once the credit card has been agreed?

rankines.pdf

You can stop paying them whilst the account is in dispute

but if you do you must be prepared for them to default you, possibly followed by court action.

Based on the applic. form they have sent you would have the perfect defence to any claim,

however it is possible that they just might come up with a legit copy of your agreement

& then you're stuffed (providing of course that they default/terminate the account properly)

The alternative is to take the initiative yourself, send a CPR31.16 request & if it isn't fulfilled,

take legal action to get the agreement declared unenforceable & any defaults removed.

However be aware that if you send out the CPR you MUST be prepared to follow through all the way.

Further info is here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

A template for 'account in dispute' is here, amend to suit eg. you will need to state you are placing the account in dispute & witholding further payments if that is what you wish to do:

Dear Sirs,

Account Number: XXX

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 an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

To clarify, 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, 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.

It does state that all terms and conditions should be within the agreement document and is explicit of 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

Hi

 

It is an action that was brought by some serial debt avoiders and the judge was none too impressed. However, look at point 28 on the ruling. It states ISSUE 5 - True Copies.

 

The judge states that the company must produce full agreement once the application has been agreed. Am I therefore correct in thinking that MBNA must supply a copy of the application and the proper CCA once the credit card has been agreed?

You are correct.

FYI, the Rankine judgment is widely seen as being flawed & possible further action may be taken to review it.

My contract has similarities to yours, MBNAslayer, and a few points that commenter’s raised about mine that have so far not been mentioned in this thread that might help are: In tghe event that an application is accepted as a valid CCA but the interest examples do not exactly matching your credit limit it could render the contract null and void

Thanks guys.

Before I go down the account in dispute route or the CPR do you think I should send the SAR under the DPA? This way I will be able to see if they do have a properly executed CCA with all of the prescribed terms?

Your help is much appreciated. It is confirming what I thought all along about MBNA.

Thanks

Yes, but I'd add that in my case they ran beyond the deadline and in the meantime I ceased payment any they defaulted the account.

Before I go down the account in dispute route (I dont want to mess up my credit scoring just yet by defaulting) I am sending them this letter so they may rectify their error

6th October 2009

Dear Sir

Account Number: XXXX XXXX

I am writing further to my request for a copy of my Credit Card Agreement under S.78 Consumer Credit Act 1974.

What you have in fact sent me is a copy of an application form for a credit card and not the actual Credit Card Agreement. What I require is the properly executed agreement which contains all of the prescribed terms laid down in the Consumer Credit Act 1974.

As I have already paid the required fee of £1.00 for a copy of this agreement I look forward to receiving the Agreement within the next fourteen days.

Yours faithfully

MBNAslayer

IMO you would be better sending the letter in Post 11 MBNAslayer - it's more comprehensive.

OK foolish girl. It is being sent today. I am still reluctant to default though. I really need the money but I will try my best to keep on paying even thought the montly minimum is about £185 or which about £180 is interest alone !!!!!!

I am sooooo confused. If I look at the document library for MBNA agreements it appears that an application form can be a valid CCA even if the T&C's are on the second page....assuming the T&C's were actually on the reverse of the document.

My request under S78 CCA will not produce anything other than what they have supplied.

If I go down the CPR route I could find that they do have a 'true copy'. If I default and they take me court my credit file will be screwed.

Oh what to do

 

If I go down the CPR route I could find that they do have a 'true copy'. If I default and they take me court my credit file will be screwed.

 

Oh what to do

You can go down the CPR31.16 route. If it doesn't throw up an enforceable agreement, YOU can take them to court for a declaration of unenforceability. If you need to do that it will cost you in fees but may save you oodles in repayments particularly at the interest you have quoted.

Thanks Foolish Girl. I was looking at the agreement they sent me and it is a bit suspicious. The application form is wider than the piece of A4 they copied it on to and the T&C's on the back are smaller. I am sure that IF the T&C's were on the reverse they would not have made them that small.

Something fishy going on me thinks!!

I am sooooo confused. If I look at the document library for MBNA agreements it appears that an application form can be a valid CCA even if the T&C's are on the second page....assuming the T&C's were actually on the reverse of the document.

 

For it to be valid, the prescribed terms should come before the signature, or be referred to before the signature, but must always be bound within the 4 corners of the agreement. What they have sent you is a typical reconstruction, where they have microfiched the front page then probably shredded the agreement, or archived it in a salt mine.

 

My request under S78 CCA will not produce anything other than what they have supplied.

 

Correct

 

 

Foolishgirl has given you good advice, send her account in dispute letter. Whether you continue to pay while the dispute continues has to be up to you to decide, but Foolishgirl's letter is the next link in the chain.

If I go down the CPR route I could find that they do have a 'true copy'. If I default and they take me court my credit file will be screwed.

 

From experience they ignore the CPR 31.16 request as they ignore everything, so the threat of it will not work. If you want to find out if they have one, you will need to take them to court.

They will only default you if you stop paying them.

 

Oh what to do

What date was your agreement?

Thanks Vint

It is an agreement from 1998.

In view of the recent case of McGuffick vs RBS is it the opinion of the CAGERS that the best way to avoid screwing up your credit rating to have the agreement deemed unenforceable and then offering a ful anf final settlement?

I would be interested to hear peoples views.

The McG/RBS case should not affect your own.

It basically decided that the OC could default you in the period during which they could not find an enforceable agreement. However it did not deal with a situation where the agreement was eventually deemed unenforceable. There are other cases coming up in the Commercial Court that may deal with this issue.

In your case, if you stop payments & then find an enforceable agreement you would be in the same boat but you would be liable for the debt anyway & if you could not pay it in full they would have defaulted you in any circumstance. If they don't find an enforceable agreement, you are not enforced to make any payments but you would have to fight the 'fairness' of the default. With a 1998 MBNA agreement, I would guess that you would be unlucky if they found an agreement at all & then they would have no rights to default you at any time as there would be no agreement to prove that you had given your permission to share info.

l & then they would have no rights to default you at any time as there would be no agreement to prove that you had given your permission to share info.

And that is the crunch point:)

Subbing. MBNA have sent me exactly the same documents.

Good luck MBNAslayer!

BF

Just a query to everyone. How do people know that MBNA have just been copying the Financial Related Conditions on the reverse of alleged agreements?

Does anyone have a real examples where this has been found to be the case?