Is this an enforcable agreement MBNA help urgent please *** WON ***

[clivey888]

Hi people,

Im quite new to this and in a right state, MBNA made a money claim against me 4 months back which i then requested a true cert copy which they didn't respond to the case was then stayed, I have today now received a letter from eversheds stating that they have supplied the agreement i signed, default notice served, statements of account and notice of assignment, They have also kindly stated that they have applied to the court to have the stay lifted and given me seven days to respond.

 

The agreement supplied is blacked out top and bottom with just the slip on bottom of agreement where i signed "please sign this form and return to us" part.....

 

It also states crdit agreement reg by cons cred act 1974, There are no terms and conditions on it just the data protection part and the following:

 

please issue a virgin credit card to me. i confirm that the information given is true and complete, i have recieved a copy of and agree to be bound by the virgin credit card terms and conditions and i understand that i am responsible for paying any balances due on my credit card account.

 

Then there is a right to cancel part then states this is a credit agreement reg b cons cred act 74 sign only if you want to be legally bound by its terms, my signature and date,,,,,,,,,Also there is a stamp on it with a signature from mbna and date..

 

Please advise what i could do or am i buggered and will have to bite the bullet, I am in dire straits at present and fighting a losing battle with regards to debt due to being a victim of a con man.

 

Your help will be greatly appreciated.

 

Thanks in advance.

[citizenB]

Is there any chance at all that you can scan in the agreement, default notice and notice of assignment (editing your personal details and account numbers out).

 

The more information people have the better they are able to help you.

[rory32]

It sounds like MBNA's standard tear off slip, which isn't enforceable, but it would be better if we could actually see the agreement so we can't confirm this.

[clivey888]

Thanks here is the scanned docs, I have just noticed the terms and conditions on the back of the copy

 

 

 

Edited June 19, 2008 by clivey888

[citizenB]

Sorry, the images are too small.

[clivey888]

i will try to scan again but having problems with the size.

[citizenB]

Any further contact from MBNA, clivey ?

[clivey888]

Hi all,

I have got a court date next friday and need someone to varify that this agreement for a credit card is legal, Also is it right that they can raise your interest rate 4 times in a year from 12% to 18 % to 22% then 24.5% when your already in dire straights?

 

If this agreement is legal then i accept i have no case and will arrange repayment options with the provider and your help will be greatly appreciated.

 

I have noticed that these maybe a little blury, I am desperate need for advice here and will email the origonals to whom whoever can advise me on this please.

 

http://i38.photobucket.com/albums/e140/spurs111/img002.jpg

http://i38.photobucket.com/albums/e140/spurs111/img003.jpg

Edited October 29, 2008 by clivey888

[AndyOrch]

Hi Clivey

 

Thats all you have you only posted some T&Cs?

 

Regards

 

Andy

[clivey888]

thanks for the quick reply sorry noticed that i added it twice the same one, i have amended now, If you cant read it private me your email and i will email origonals, I am desperate and mad that they only provided this now.

[AndyOrch]

Hi

 

There are no perscrbed terms within the signitory sheet therefore its unenforcable and is merely an application not a CCA1974 agreement.

 

I trust the above helps

 

Regards

 

Andy

[clivey888]

sorry for being a pain but can you explain idiot proof please, explaining perscrbed terms, I dont want to waltz into a court stating that and then being made an idiot, Also could you read the copy ok as i thought they had terms on them?

 

Thanks in advance.

[42man]

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

[clivey888]

Thanks again, How should i go about this, Should i write a letter to the solicitors staing what you told me as i have spoken to them on the phone and they state that we will disagree as it states on there by my signature that this is a credit agreement and only sign if you want to be bound by its terms.

[AndyOrch]

Thanx 42nd Man

 

Ok were your signiture is there as to be perscribed terms to render the agreement enforcable.

What are the perscribed terms :-

 

Credit limit / APR and % / payment due date amount to pay

 

Also the T&Cs must be within the 4 corners of the signitory sheet or refered to as overleaf/attached or on the revese of the signitory sheet.Which ever they must be linked in some way to your signiture otherwise your signed agreement as no terms and conditions for you to be bound to or agree to conform to.

 

I trust the above helps

 

regards

 

Andy

[clivey888]

What would you suggest be my next action, I am in a bit of a panic here as the court date is next friday, what do you suggest i put in a letter if advised to? And what to state to the judge next friday?

 

Sorry for being a pain in the arse here your help is greatly appreciated.

[AndyOrch]

Hi Clivey

 

You state you are in Court next Friday is this a Hearing?

What stage are you at in your case have you submitted witness statements?

What does the DJ state in the order for you to attend?

 

 

Andy

[clivey888]

It states that the district judge has allocated the claim to the small claims track, and the hearing will take palce on the 7th november, I have not issued what my defence will be as of yet and noticed that it says that each party shall deliver and to the court office copies of all documents he intends to rely on at the hearing no later then 14 days.

 

Am i buggered or do i still have a chance.

[AndyOrch]

Im a tad confused Clivey:confused:

How have you got to a hearing without submitting a defence?

How has it been allocated to SCT without a defence?

What was the Claimants P.O.C?

 

 

Andy;)

[clivey888]

In the questionare i stated that had not rec information req so was unable to submit a defence the next thing i rec was a letter stating what i stated to you on the 12th sept, Since then i have had a operation in hospital, police invistagting a fraud against me to the tune of 30k and another claim against, So as you can see i have been quite depressed and totaly have my back against the wall right now. I admit that i have dragged my feet with this somewhat maybe buring my head in the sand but have somehow managed to get the courage to at the 11th hour to fight this.

[clivey888]

the claimants poc is the defendant entered into a credit agreement on such date and a copy of terms and conditions attacched, under clause 1.4 the terms on the reverse of the agreement the defendant was obliged to pay a minimum payment due date shown on the relevant statement, Defendant did not comply with default notice.

 

Will i still be able to contest this even though i have not submited a defence yet and 9 days before date, given the unfortuante circumstances i have and currently going through.

[AndyOrch]

Ok Clivey sorry to hear you are having a hard time of it all.

Ok in your AQ did you request any directions or make an order for any other docs? i would summise not as this is SCT and therfore limited to the DJs discretion.

Is this claim from the original creditor and did you ever recieve a Default Notice if not and from a DCA have you ever recieved a NoA (notice of assignment?

What other docs apart from the Agreement have you requested?

 

Andy

[clivey888]

Citizen B hi, I have created a new thread with regards to this and am in deep do do, Please take a look and advise, It is under the legal side.

 

thanks in advance.

http://www.consumeractiongroup.co.uk/forum/legal-issues/166167-help-uregent-court-case.html

[clivey888]

I have recieved all info req now, The so called copy agreement, The default letter copy statements, The assignment over to arrow global from mbna.

 

The default letter is from arrow global.

[clivey888]

the assignement has no date on also