Right, this is going to them first thing in the morning: Rachel Mason Trading Standards Officer Community Protection Services Trading Standards PO Box 65 Vancouver House Gurney Street Middlesbrough TS1 1QP 30/5/2007 Dear Ms Mason Re: Alliance and Leicester Credit Card (provided by MBNA). I am in receipt of your letter dated 25th May 2007, the contents of which are noted. I am most unhappy with the conclusion that you have reached and would wish you to reconsider as a matter of urgency. Your letter contains many inaccuracies, and these misconceptions appear to have affected the conclusion you have reached. You state that MBNA have provided me with a copy of my agreement. This is clearly not the case. They have supplied me with a copy of an application form which cannot be mistaken for a fully regulated agreement. Ian McCartney of the DTI has replied, when written to about this issue, that it is a breach of the Act to send an application form rather than an agreement in response to a request under Section 78 of the CCA 1974. This is precisely what MBNA have done. Furthermore, the application form they sent me has never been signed by MBNA, so any assertion from them that this document constitutes an executed agreement is ridiculous. An agreement is only executed on the signature of both debtor and creditor. Therefore, MBNA cannot claim to have ever had an executed agreement in relation to this account. As it is a copy of the EXECUTED agreement that they are required to send me in response to a Section 78 request, they simply cannot have complied. Moreover, the application form they sent me lacks every single prescribed term required under the CCA 1974. You state that there are different rules for different agreements. This may be true to an extent but ALL agreements for fixed sum or running account credit must have at least the following terms: A credit limit A rate of interest A schedule of repayments This document sent to me by MBNA has none of these, and so cannot possibly constitute an enforceable agreement. Finally, your letter makes no mention of the serious breach of Section 85 (CCA 1974) committed by MBNA in relation to this account. I explained previously what Section 85 requires of the creditor, and as I have now demonstrated without doubt that MBNA have no executed agreement in relation to this account, it follows that they can NEVER have complied with Section 85. I still await your comments on this issue. I feel completely let down by Trading Standards as an enforcement agency that was, please remember, set up to protect the interests of the consumer. I have demonstrated clearly that MBNA remain in breach of my request under Section 78 of the CCA 1974. I would like to add that, as well as the issues already described, Section 78 requires that they also send a signed statement of account and a copy of any documents referred to in the agreement. MBNA have done neither. A creditor cannot have fully complied with Section 78 until all of the required documents have been produced. How can you state that MBNA have complied when they haven’t supplied these documents to me? Please reply as a matter of urgency stating your intended actions now I have made your errors clear to you. Should you maintain that you will not pursue MBNA any further in relation to these matters, please supply me with full details of your Manager and also full details of your complaints procedure. Is it really too much to ask that Trading Standards perform the functions they were created for when such a clear breach is presented to them? I await your swift reply. Yours sincerely ian1969uk

The explanatory notes of the CCA 2006 state the following: 11 The repeal by this Act of- (a) the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act, (b) subsections (3) to (5) of that section, and © the words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act. In other words, the repeal of Section 127 does not apply to agreements made before 6th April 2007. It would seem Ian McCartney is wrong.

Well, Trading Standards have proved to be useless yet again. I reported MBNA to them for non-compliance with my Section 78 request, MBNA sent me an application form, unsigned by them, containing absolutely none of the prescribed terms. I sent all correspondence to Trading Standards, along with a comprehensive letter stating where the 'credit agreement' was flawed, about harassment, about Section 85 default...the lot. Their reply received today reads as follows: Dear ian1969uk Re: Alliance and Leicester Credit Card I have now had the opportunity to look into your complaint in further detail. It would appear that Alliance and Leicester have now supplied you with a copy of your agreement. I understand from the correspondence you provided that Alliance and Leicester have also agreed to refund the amount of charges you were requesting. You also state in some of your correspondence that you believe the agreement sent to you does not comply in that it does not contain all of the prescribed terms. As your agreement is one for running account credit not all the requirements apply ie special rules apply for different types of agreement; fixed sum credit, hire purchase agreements etc. As the requirement under Section 78 of the Consumer Credit Act 1974 has now been fulfilled, albeit slightly outside the required statutory time period, it would not be deemed to be such a sufficient default to warrant a criminla prosecution. If you require further assistance regarding the civil elements of your complaint, then our Consumer Advice Centre may be able to assist. Yours sincerely Rachel Mason Trading Standards Officer. I'm speechless really. They have complied eh Trading Standards? With an application form with no prescribed terms? I received no statement of account nor relevant terms and conditions. I'll need to calm down before composing a reply to Ms Mason. Any thoughts as to what I should say?

Be sure to keep a record of all calls for any future court action for harassment.

Trading Standards

Just to clarify, a creditor does not need the permission of the court to enforce an agreement if they produce it after they have committed an offence. As soon as they produce it, even if it's months after the CCA request, they can enforce again from that date (ie they can't ask for payments for missed months due to their non-compliance, nor should they have been adding interest). There is nothing within the CCA 1974, nor subsequent regulations, that states that they need the court's permission to enforce once they produce an agreement after the allowed timescales.

Robert, you can stop paying after the 12 working days, so get that direct debit cancelled!

I don't think there's any problem at all with putting Section 77-79, why would there be? As long as the section relevant to the account in question is included, the request is valid.

It hinges on when the agreement was made: Pre April 2007 the new amendments don't apply. After April 2007, they do. It's that simple in terms of the agreement enforceability.

That letter from MBNA is just what you need, an admission that they don't have the agreement. Despite their valiant attempt to convince you that they can still make you pay, it's clear that they cannot.

No, it's not retrospective. If an agreement was taken out before April 2007, and is unenforceable now, then it will always be unenforceable, even after April 2008. If these new provisions were restrospective, it would cause chaos as every situation that was thought to be concluded was dragged up again by creditors who now thought they could enfoce debt.

It's section 77.6 or 78.6 depending on what type of account it is. It states clearly that while their default in supplying the credit agreement continues, then they are not permitted to enforce the agreement. This equals no payments.

No, they don't.

Oh yes, I don't doubt that the test is helpful, but I was simply making the point that these Smile agreements are clearly unenforceable without running it through the test. There is a problem with that page, though, in that it won't accept a huge number of agreements because they are missing some of the information that it requires. It needs an option to say that something is simply not on the agreements.

It doesn't need the test, it's completely unenforceable, no doubt about it. It lacks two of the three prescribed terms.

The right to cancel, as well as default charges, are missing. However, neither of these are prescribed terms and wouldn't make an agreement completely unenforceable. Luckily for us, the lack of interest rate and credit limit do this perfectly well!!

That 'credit agreement' is exactly the same as Smile have just sent me. It lacks two prescibed terms: 1. No interest rate - it does state an interest for transferred balances but not a general interest rate for the card. 2. No credit limit - not even a statement of how this will be determined. This type of 'agreement' is COMPLETELY unenforceable, even in court.

By all means send the CCA request and see what it brings!

Sorry, you're both wrong. The answer is in the CCA 1974: 6) If the creditor under an agreement fails to comply with subsection (1)— (a) he is not entitled, while the default continues, to enforce the agreement Therefore, once the default is rectified, whatever the timescale, he may enforce the agreement once again. Trust me, this is 100% fact.

Not true I'm afraid. If they produce a credit agreement that is signed and contains all of the prescribed terms, then they can enforce again immediately with no need to take it to court.

We have to accept that some will never have had a proper CCA to begin with. They haven't lost/deleted it, it was simply never there.

But if you know the debt is not enforceable, then why would you reply? Just ignore whatever they send.

Companies like Next really annoy me. Now, we all know that unenforceable does not mean the debt goes away. BUT to register a default is the action a creditor takes if the customer doesn't keep up the agreed repayments. In the absence of a credit agreement, there has never been any agreed frequency of payments, so what the heck are they defaulting you on?

It's not complicated. If a debt is acknowledged before the 6 years is up, the 6 year clock starts from the beginning again. Once 6 years has passed with no acknowledgement, the debt is statute barred and no amount of acknowledgement would start the clock over again.

As opposed to the Conservative's brilliant job in the past of getting interest rates up to 15%. Think before you post.