Ruling by Judge Waksman - what changes?

[manxie]

Prior to discovering this fantastic site, I had been using a company to contest validity of MBNA CCA for the last 12 months. MBNA have issued court proceeding through Restons and at last produced a copy of my signed CCA. My defense was entered on the basis of no CCA being produced, so the situation has changed in MBNAs favour.

I have challenged the CCA on the grounds that it is not signed by MBNA and in the signature box on the front where I have signed, it says: 'credit agreement' not credit card agreement.

 

MBNA in November sent me their FAQ's relating to section 78 and it states that 'the agreement will be signed by both us and you"

 

My solicitor now says that since the ruling by Judge Waksman earlier this month everything has changed and what were previously considered grounds for having an unenforceable agreement are no longer the case.

Link here to the rulingCarey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

 

Am I getting good advice from the Wig?

[saddler68]

May I suggest that you ask your solicitor why he thinks MBNA settled on the steps of the Manchester Mercantile Court. Waskman has not changed the CCA but has made some CMCs and solicitors realise they will need to do a proper job to earn their fee. Post some more details, Im sure you will still have a good case.

[manxie]

So in you opinion now that there is no requirements for the original CCA to be produced, has his not altered the situation for many people?

 

My solicitors are saying that my agreement is compliant as a result of this ruling. One thing I am not happy with is that there is no signature box for the lender. They have just signed the front of the form

[haggis1984]

Have you considered the validity of the Default notice?

[manxie]

No but obviously I should be- but the matter has been set down for hearing and my solicitors say we should make an offer to settle. Solicitors are apparently querying a discrepancy withe the dates on the agreement.

[supasnooper]

 

One thing I am not happy with is that there is no signature box for the lender. They have just signed the front of the form

 

The lack of the lenders signature would only make the agreement unexecuteable; not unenforceable.

[vint1954]

So in you opinion now that there is no requirements for the original CCA to be produced, has his not altered the situation for many people?

 

My solicitors are saying that my agreement is compliant as a result of this ruling. One thing I am not happy with is that there is no signature box for the lender. They have just signed the front of the form

The requirements have not changed following Carey v HSBC. This was a case where the debtor took the creditor to court under s78. Under s78 the creditor can reconstruct a true copy of the agreement. Carey lost, or rather their CMC did. It was widely beleived to be a poor case to take to trial.

 

When the boot in on the other foot, that is the OC takes you to court, the boot is on the other foot as they have to prove their case. The Carey Judgement does not change that situation. They will need to prove that the Prescribed terms were on the reverse of the application/agreement.

 

You may have better luck with the DN, although you will have to spell it out to the judge.

 

What date was the DN issued?

 

What was the rectification date?

 

Was the amount claimed in the DN just the arrears, or the full ballance?

 

Vint

[manxie]

Thanks for all the advice.

Vint here is the default that MBNA say they issued. I don't appear to have a copy but my solicitor/cmc did.

 

 

[haggis1984]

What date did they terminate the agreement?

i.e. sell the account to a debt collector, instruct solicitors?

[manxie]

MBNA issued a claim through Northampton (CCBC) on the 17th July 2009

but I don't know if these means that they have terminated the agreement.

[vint1954]

Well, these are sent out UKmail, which is second class and you would always maintain that. The date of service therefore, would be the 8th June 2009. They have not allowd 14 clear days to rectify the default, so the notice does not comply with the regulations.

 

They have indicated that they WILL terminate your agreement and as a layperson you can expect them to cary out their actions. They have indeed terminated the account, by demanding the full ballance.

 

This amounts to unlawful termination. It is probably too late now to accept this in writing, but in future when you refer to the agreement, use the words " Unlawfully Rescinded, and action that I have previously accepted"

 

Can you post up your agreement, minus personal details.

 

Where does your court case stand at the moment.

[vint1954]

MBNA issued a claim through Northampton (CCBC) on the 17th July 2009

but I don't know if these means that they have terminated the agreement.

Yes, it does.

[manxie]

Vint - Here is the agreement - front and back, Thanks for your help

 

 

[manxie]

Mbna have entered their witness statement and we are seeking clarification over some dates that apparently do not match up.

[vint1954]

Have a look here:

 

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

 

This is obviously an application form. Application forms can become agreements, if laid out in the correct format. These should be headed This is a credit agreement regulated by the CCA174. This text appears in the signature box, but is very small.

 

The agreement has not been executed. ( signed by MBNA)

 

My personal opinion is that if they seek to use an application form as an agreement, it must be capable of becoming one, that is to say, there must be provision for both parties to sign and date it. There is no provision for MBNA to sign it and there never was.

 

You will need to look into pre and post contract/agreement documents in the CCA 1974.

 

Take a close look at the statements about APR.

 

Quote:

 

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.

 

Hope this helps.

 

Vint

[manxie]

MBNA claim that the signature top right on the Application Form with the number 595222 above it is their signature and apparently there is also a feint date stamp next to it.

Looks to me like the signature of whoever checked the application.

[vint1954]

There is still no position for them to sign. That could be just a received stamp.

[manxie]

I agree and I have raised this with the solicitors who seem to think a judge would find this signature acceptable. I will query this again.

Thanks Vint