Recieved MBNA CCA Request, need some help please

[MickKane]

Hi I recieved my request for my CCA today from MBNA although it took over the 12 days I eventually got it.

 

Could someone have a quick look to see that it all looks in order and if I will have to start to make payments again. Thanks

 

Covering letter - http://a.imagehost.org/0951/img024.jpg

 

Credit Agreement http://a.imagehost.org/0449/img025.jpg

 

Reverse of Agreement http://a.imagehost.org/0659/img026.jpg

 

Letter regarding T&C http://a.imagehost.org/0778/img027.jpg

 

Reverse of letter regarding T&C img028.jpg - ImageHost.org

 

more T&C img029.jpg - ImageHost.org

 

more T&C img030.jpg - ImageHost.org

 

last page T&C http://a.imagehost.org/0752/img031.jpg

 

.

 

Thanks for any help

[MickKane]

Anyone have any views on this thanks

[twofoot]

Can't read right hand side of reverse of agreement. If that's the best you've got it won't pass the test.

[fedup74]

Another classic cut and paste job from MBNA. Note that the print on the reverse of your APPLICATION is readable- the financial related conditions are not, they have also sent the current T&Cs with default charge of £12- they were certainly higher than £12 in 2002.

[MickKane]

Yeah mate its totally unreadable that part, is that good enough for it to fail.

 

Just received another statement from them today with extra charges on.

 

Where do I go from there. Do I send them a letter to tell them its unenforcable.

 

Thanks

Edited January 15, 2009 by MickKane

[MickKane]

Any ideas anyone?

[fedup74]

Send them this:)

 

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. An application form, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A application neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until XX/XX/2007 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

 

 

**amend to suit your circumstances.**

[fedup74]

Actually this one might be better:)

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your letter dated 16th June 2008.

 

It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1).

 

You have provided me a copy of an application form and I feel it is my duty to draw your attention to some serious flaws in your comments.

 

Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement (Not an application), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

 

Now then, these regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

 

For your information in case you are unsure. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

Now nowhere on the application form that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect

 

Since the document you have supplied is a clear mailer application form, I cannot believe for one moment that these very important terms would be contained on the opposite side of the form, unless they are there for the postman to read while he delivers the mail. Therefore they must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

 

Therefore, you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regs under s60 CCA1974

 

I am of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Now since this document does not contain all the prescribed terms s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.

 

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading .

 

I respectfully request you review this matter in light of my comments above and I request that you supply me the required information or alternatively confirm the account is closed and the debt written off with a zero balance.

 

I respectfully request a reply within 14 days of the date of this letter.

 

Yours Sincerely

[MickKane]

Thanks very much Fedup, thats very helpful. Are you saying that this

 

http://a.imagehost.org/0449/img025.jpg

 

is an application form and not a credit agreement. I thought it was a credit agreement as thats what it says on the top of the form under AOL.

 

Thanks again

[atwozee]

It says agreement - but you are applying for a credit card that hasn't been agreed yet - which implies there could be a refusal - so it's not actually an agreement - no matter what they say.

[fedup74]

Yes, it says "Please issue me an MBNA card" and it is a "Priority request form". Also for a properly executed card agreement, I'm sure it should be headed "Credit Card Agreement regulated by..." and not just "Credit Agreement regulated by..." (although I may be wrong on that last bit!!)

[MickKane]

Thanks for all your help, its amazing this site, dont know how I would of managed without it. Just hope one day I can help others like I have been.

[fedup74]

You will Mick, by the time you've seen them off you will be an expert!

[angel_1]

Hiya mick

 

am subbing and wishing you good luck

 

you will soon be addicted here but you will learn lots of good stuff

 

take care laters angel x

[mandyjayne]

Hi All

 

Well Fedup74, im gonna use that letter right now!!

 

Mickkane, i have just received my cca from mbna and mine is also an application form..i would post my thread but dont know how to!

 

MJ

[fedup74]

Hi mandyjayne if you go to new posts at the top of this thread, you will get a page of threads. Look down the right hand column and you will see what forum the threads are in. Look for one in DEBT COLLECTION INDUSTRY and click on them words. You will go to that forum and on the top is a tab with NEW THREAD click on here and tell us your story!!

[mandyjayne]

Hi fedup74

 

thanks for that..i already have a thread in legal issues i have a hearing on 11th march for ccj/charging order..how do i add that thread here?! sorry confusing.. i am rubbish at this:confused: MJ

[atwozee]

Here it is

http://www.consumeractiongroup.co.uk/forum/legal-issues/167654-help-ccj-charge-home.html

[MickKane]

Hi Fedup, posted that letter off you reccommended today, also had a call from MBNA about non payment for a couple of month, they said that they do not need to supply me the t&a from when the card was applied for and that the current ones are sufficiant. also said that the application is the credit agreement.

 

I told her she was talking rubbish and to expect the letter I had posted. Can someone just reassure me that the t&c need to be the ones taken at the time of credit and the application is not enough for an agreement.

 

Thanks. Got to get rid of these little doubts that creep back lol

 

Oh I also told her about parts of the form being unreadable and she said she would look into getting me a better copy

Edited January 16, 2009 by MickKane

[atwozee]

Can someone just reassure me that the t&c need to be the ones taken at the time of credit and the application is not enough for an agreement.

 

When you request information under s78 of the CCA 1974 the creditor is supposed to send you a copy of the agreement and any document referred to in it. If the application refers to terms that aren’t on the application itself then they must therefore be in another document – a copy of this document must also be supplied. There’s no way round this argument for the creditor.

 

They also need to supply current terms if the previous terms have been varied since the agreement was signed.

 

The only time (I think) they can send just the current terms are when they send a copy of the agreement to satisfy s85 – that’s when they issue you with a card update and that is detailed in the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations at regulation 8.

 

As far as is the application an agreement is concerned – that is only likely to be settled in court. They say agreement – we say application. In theory a judge could go either way which is why it’s more important to dispute whether the document complies with s127(3)

[manchester1]

Mickkane, It would seem that fedup &atwozee are on the right path ,the first is an application form ,and the credit agreement is recent due to the £12 charges .MBNA credit agreements @2000 had higher amounts in their charges payable section. I would hang on tight and be patient it could be a bumpy ride with the DCA chucking everything at you .

 

Manc1

[Fred Bassett]

It ought to be easy enough to see if this is two sides of the same document. Just above the 'CREDIT CARDS' section on the front page you can clearly see through to the back page and there is some kind of reference '2800'. There are plenty of other examples of this too that you might be able to use to prove that it is not the same document if this is the case.

 

Regards.

 

Fred

[MickKane]

It ought to be easy enough to see if this is two sides of the same document. Just above the 'CREDIT CARDS' section on the front page you can clearly see through to the back page and there is some kind of reference '2800'. There are plenty of other examples of this too that you might be able to use to prove that it is not the same document if this is the case.

 

Regards.

 

Fred

 

I have been looking at that Fred but cant see what your on about. Might need eyes checked.

[Fred Bassett]

I have been looking at that Fred but cant see what your on about. Might need eyes checked.

 

Mick, this is what I'm on about:

 

 

Can you see this if you hold your agreement up to the light?

 

Regards.

 

Fred

[atwozee]

This is also very interesting – in their haste to squeeze the prescribed terms on the right hand side of the reverse of the application they forgot to adjust the text here

 

Surely it would say Return to or post to – doesn’t look right to me.

 

BTW Fred how do I just paste an image into a thread like you've done?