MBNA CCA - Is it legal?

[nks22]

Today received MBNA's response to my CCA request - a mail-in application from 2000.

 

The two 'halves' don't appear to match. The application refers to data protection info. in condition 12 but condition 12 on the other half is about payment holidays. Possibly it could refer to a different condition 12 on a tear-off list but who knows?

 

I'd be grateful for any comments and suggestions of what my next move should be. I haven't paid anything for a few months although CAB is supposedly negotiating a six-month freeze but I'm still receiving statements with about £500 extra interest each month. (I'm awaiting their response to a SAR as well.)

 

 

 

[nks22]

Reading it more carefully it does state that the 'Financial & Related Conditions' quoted are paragraphs 1-12 of Conditions 8 and 9 of their T&Cs. They haven't provided a copy of the original T&Cs, though.

[nks22]

OK, here's what I think is wrong with my CCA:

Application form, not an agreement? Pre-contractural? (Not sure about this one.)

 

Microfiche copy - could it be that they don't have the paper original? If so, how important is that?

 

Signature page doesn't refer to the Financial & Related Conditions overleaf (assuming it's genuine).

 

'This is a Credit Agreement...'

should be

'A Credit Card Agreement'

.

 

Prescribed terms include reference to conditions not 'within the four corners', e.g.

3. 'unless we allow a payment holiday under condition 9.4'

 

4b. 'as mentioned in conditions 9.4, 10.5 and 10.6'

 

5a. 'except as mentioned in condition 9.1

 

8b. 'except as mentioned in condition 8.11'

 

10a. 'except as mentioned in condition 9.1'

 

10b. 'under condition 14.1'

 

12. 'except as specified in a notice under condition 15'

(And with no original T&Cs provided I've no way of knowing what these conditions were.)

 

I notice, also, that despite my gross annual income being given (correctly) as £14,200 MBNA over time increased my credit limit to £19,800 - never requested by me. (The debt is now over £20,000 and earning over £500 in interest monthly at the extortionate rate introduced by MBNA last year.)

 

Any and all feedback gratefully received.

[vint1954]

OK, here's what I think is wrong with my CCA:

Application form, not an agreement? Pre-contractural? (Not sure about this one.)

 

The important thing here is that it only says application form. No header saying this is a credit agreement regulated.............

 

Microfiche copy - could it be that they don't have the paper original? If so, how important is that?

 

They will need the real one in court. No sign of franking marks on the reply paid section.

 

Signature page doesn't refer to the Financial & Related Conditions overleaf (assuming it's genuine).

 

Prescribed terms should be on the signature page. If they are on page 2, that is the page you should sign.

 

'This is a Credit Agreement...'

should be

'A Credit Card Agreement'

.

 

Prescribed terms include reference to conditions not 'within the four corners', e.g.

3. 'unless we allow a payment holiday under condition 9.4'

 

4b. 'as mentioned in conditions 9.4, 10.5 and 10.6'

 

5a. 'except as mentioned in condition 9.1

 

8b. 'except as mentioned in condition 8.11'

 

10a. 'except as mentioned in condition 9.1'

 

10b. 'under condition 14.1'

 

12. 'except as specified in a notice under condition 15'

 

(And with no original T&Cs provided I've no way of knowing what these conditions were.)

 

Correct

 

I notice, also, that despite my gross annual income being given (correctly) as £14,200 MBNA over time increased my credit limit to £19,800 - never requested by me. (The debt is now over £20,000 and earning over £500 in interest monthly at the extortionate rate introduced by MBNA last year.)

 

Irresponsible lending then

 

Any and all feedback gratefully received.

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an application form, devoid of all prescribed terms, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

Let me explain here, what a true copy is:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

[nks22]

Thanks for those replies and the excellent letter.

 

The errors in prescribed terms seem to be the most glaring, I think, as mentioned in

 

http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

Comments : Around this time, MBNA did cock-up the Prescribed Terms. A common mistake was on the Minimum Payment Prescribed Term, as MBNA used to add a series of exception clauses to them...i.e. exception clauses that were to be found within another Document!

 

That stuffs them, as the Prescribed Terms cannot be found in another Document...they must be

contained within the

four corners of the Agreement.

[vint1954]

Thanks for those replies and the excellent letter.

 

The errors in prescribed terms seem to be the most glaring, I think, as mentioned in

 

http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

Comments : Around this time, MBNA did cock-up the Prescribed Terms. A common mistake was on the Minimum Payment Prescribed Term, as MBNA used to add a series of exception clauses to them...i.e. exception clauses that were to be found within another Document!

 

That stuffs them, as the Prescribed Terms cannot be found in another Document...they must be

contained within the

four corners of the Agreement.

I think you need to dispute this one on the basis that it is an application form devoid of all prescribed terms. The likelyhood of that being the true back of an application is very slim.

 

The trouble is that they would have to have the original in court, to be able to prove the document is true.

[blueotter]

Agree with vinnt,i'm in a similar situation and mbna are the baddest of the bad.

You'll be lucky to get any response from them whatsoever to any query.

It took 3 months for my incorrectly exectuted cca (devoid or prescribed terms also) to arrive and when it did it was accompanied by a defective default notice.

Although i'm a bit worried as i haven't received the termination letter yet.

I have a thread if you want to taek a look just go to my profile and you'll find details in there.

good luck and keep us updated.

[nks22]

Thanks. Just read your thread (and others linked to it). Our cases seem very similar. I've subscribed to your thread and will follow it with interest.

[blueotter]

You're welcome,its a common theme for most of us who have to deal with mbna that they aren't the slightest bit interested in personal circumstances.

My credit limit was 5k in excess of my annual wage as well,indicative of irresponsible lending as vinnt has pointed out.

If i had used the full amount i would have spent 40% of my monthly income on just servicing the 34% apr interest !! 40% of my monthly take home salary just to keep the account standing still.

They are morally bankrupt as a company and i have no compulsion to play fair with them at all.

Good luck ,i've subscribed to your thread as well.

[nks22]

Just had an interesting call from MBNA. They (very pleasantly) said that they'd be taking me to court. When I mentioned that I hadn't yet received a valid copy of the original agreement they 'explained' that the judge would only be interested in whether or not I'd borrowed the money ("It's as simple as that"). Anyway, after all that they said they'd be willing to settle the debt at 30% (£6,500). I said if they put it in writing I'd be happy to consider it and respond.

 

Anyone had a similar response? They haven't even sent a DN on this account so to be offered a 30% settlement at such an early stage seems quite promising.

[Old Cogger]

Probably panicking if they sell it not worth much, they are probably trying to get as much as then can knowing non inforceable CCA???? more frighteners, make sure you have it in writing every word they have said, they will not admit all of the conversation, try not speak to them on the phone they tend to be liars in conflict.

[stevehatesbankers]

nks22, they must like you. I have just had a phone call from them a couple of hours ago. Having given one of their abusive arrogant muppets the runaround for a few weeks, one of their managers rang to "help me". I was another of the 34% victims. If I could pay them 40% tonight they would write off the remaining balance (very kind of them). I advised him that my outstanding balance was all charges so he reduced it to 30%. I have a CMC dealing with my claim and have already been advised it is unenforceable. The solicitors have already issued MBNA with a letter before action so they are obviously running scared. I wont be accepting any offers other £0

[vint1954]

Just had an interesting call from MBNA. They (very pleasantly) said that they'd be taking me to court. When I mentioned that I hadn't yet received a valid copy of the original agreement they 'explained' that the judge would only be interested in whether or not I'd borrowed the money ("It's as simple as that") Shame you did not record that. The judge will obviously want to see the agreement, as the lack of one will form part of your defence. Anyway, after all that they said they'd be willing to settle the debt at 30% (£6,500). I said if they put it in writing I'd be happy to consider it and respond.

 

Anyone had a similar response? They haven't even sent a DN on this account so to be offered a 30% settlement at such an early stage seems quite promising.

They need to send a DN before they can terminate.

[nks22]

I wouldn't normally talk to them on the phone and usually tell them so before they go through the security. This time they didn't bother with any security questions and I stayed on as much out of curiosity as anything else. It would have been interesting to record the spiel she gave me about a judge not being interested in any agreement. I said I'd respond if they put their offer in writing but as I don't have £6,000 (or even £600) to spare it's largely academic anyway.

[ihpj]

Hi Guys!

 

Very interesting thread and thoughts shared.

 

I believe I have a very similar issue in my own thread and would be grateful for people's input as I am awaiting a response from MBNA.

 

Any help appreciated, altho' I shall be subb'ing this thread with interest.

[nks22]

What they've sent you looks pretty much identical to mine so I hope it's unenforceable for the same reasons I've given in #3 above.

 

This is the letter I sent them on 16 October though whether it has any connection to this week's offer to settle is anyone's guess.

Dear Sir/Madam

 

Re: MBNA a/c ref. xxxx xxxx xxxx xxxx

 

ACCOUNT IN DISPUTE

 

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. The items sent in your reply do 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. It 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’.

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553; the prescribed terms must be within the signature document. (Column 2, Schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form or improperly executed.

 

The ‘Financial & Related Conditions’ you have provided (and to which there is no link from the signed application form) include reference to a number of conditions on a separate document. In Wilson and another v Hurstanger Ltd (2007) it was confirmed that “the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties… and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them… they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

I therefore 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 14 October, 2009 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. 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,

[Harrassed09]

subbing Also getting nil response from MBNA#

 

Steve do you have a LBA I could crib Need to do something

[ihpj]

What they've sent you looks pretty much identical to mine so I hope it's unenforceable for the same reasons I've given in #3 above...

 

Thanks for the input. I have drafted something myself that I sent them today. So wait and see what they will come back with. no doubt this will end up in Court if the other threads are anything to go by...

[stevehatesbankers]

subbing Also getting nil response from MBNA#

 

Steve do you have a LBA I could crib Need to do something

 

Hi Harrassed09, I dont have a copy of the LBA but will try and get you a copy. I believe this site has a template but I will ask my CMC to forward me a copy of the letter. They rang me again on Tuesday. Quite surley and tried to put words into my mouth by saying I was happy to accept a reduced offer. I reminded him that I had never accepted an offer nor have I received a written offer. I will be interested to see if they are prepared to put any offer in writing but I aint going to hold my breadth. I may consider a £0 offer though. They lie, contradict themselves and are obviously desperate.

[nks22]

Well I've heard no more from MBNA and as yet haven't received their promised offer in writing. Perhaps I shouldn't be surprised.

[nks22]

DN received from MBNA. I think dates are possibly OK if First Class but not for Second although I make earliest remedy date for First to be 28th whereas they request payment 'before' 28th. Is there anything else to consider? How should the arrears be calculated, for instance?

 

[nks22]

However this morning I received this. Presumably it counts as unlawful recission as it's some time before the DN's remedy date. What should be my next move, though? And should I write to MBNA, Direct Legal or both?

 

[haggis1984]

Ive had the exact same nks22. Im on the lookout for the unlawful recession letter template, ill let you know if I come accross it.

[Dotty50]

Hi nks22,

 

Had exactly the same today and default notice like yours.

 

Did they get your account number right? They quoted an old HFC number on mine!

 

Here is one of my MBNA threads

 

http://www.consumeractiongroup.co.uk/forum/mbna/201854-mbna-ex-hfc-beneficial.html

 

There is also one by LB145 with the same letter today

[nks22]

I hadn't checked that but now I see they've used a different, older account number on the letter. Same MBNA card but they changed the number in 2005.

 

The DN came from 'Recovery & Risk Operations' but the letter from 'Customer Assistance' (some assistance!). Does the left hand know what the right hand is doing?