Getting stressed can my CCA help

[clowders]

Hi all,

 

Brief history, try to get MBNA to reduce interest and reclaim back charges.

 

I've finally received my CCA from MBNA and would like to know whether it it is valid. I'm am trying to get MBNA to reduce my rate of interest due to financial difficultly. I am not trying to walk away from my debt, but they are making it very difficult for me and my family at the moment with letters and phone calls and i'm trying to gain a bit of power back. Anyway if someone could spare some time to help me with this I would appreciate it very much. CCA on links below.

 

http://i245.photobucket.com/albums/gg48/clowders/scan0001-1.jpg

http://i245.photobucket.com/albums/gg48/clowders/scan0001.jpg

http://i245.photobucket.com/albums/gg48/clowders/scan0002.jpg

http://i245.photobucket.com/albums/gg48/clowders/scan0003.jpg

http://i245.photobucket.com/albums/gg48/clowders/scan0004.jpg

http://i245.photobucket.com/albums/gg48/clowders/scan0009.jpg

[stroke a badger]

It's an application form, but have a wee look at this to give you an idea if it's valid or not.

 

http://www.consumeractiongroup.co.uk/forum/general-debt/83035-guidelines-requests-original-agreement.html

[steven4064]

AS badger says, this is just an application form and, as such, is unenforceable by virtue of s59 of the CCA 1974. To be an enforceable agreement it must have, on the same sheet of paper:

 

1) your signature (s61 CCA1974)

2) prescribed terms - your credit limit, APR, how minimum payments are determined (scedule 6 Consumer Credit (Agrement) Regulations 1983)

 

(the terms in 2 are for a credit card - loans have different prescribedterms)

[clowders]

Thank you for your responses so far, I am in the process of drafting a letter to send, but I can clarify two things.

 

The prescribed terms - your credit limit, APR, how minimum payments are determined etc, should this be on the actual signed application form or in the small print pages for the CCA to be valid.

 

Also they have £12 for charges on the small print, does anyone know when this came into effect as the application form was signed in 1998 and i thought the £12 was introduced at a later date.

 

thank you

[steven4064]

The prescribed terms have to be on the same sheet as your signature (because you are signing to say you accept them).

 

I don't know when the £12 charge was introduced but I suspect after April last year. THey have sent you recent T&Cs rather than the ones in force when the agreement was signed.

[clowders]

Hi all, i'm after some further advice as I'm not quite sure what do to next.

 

I sent a letter to MBNA, mainly borrowed from Alphageek basically stating that I have only received a copy of my application form (links in above post) and not the CCA. That the account was now in dispute and I will make no further payments until I receive the CCA.

 

I also stated that they have not complied with my SAR request which was set on 26th November 2007.

 

I have received the following letter from them and I need some help responding.

 

Dear Clowders,

 

Thank you for your recent letter, the contents of which have been noted.

 

We disagree that MBNA has not sent you what you have asked for, in fact we are confident that MBNA has provided you with all the necessary information which is required by law. we have set you a true copy of your agreement containing all necessary material terms and conditions. This is what we have to send you.

 

we would like confirm that MBNA does not regard this account balance or your obligation to repay as being in dispute, and would like to point out and clairfy that your credit agreement is valid and your abligation to repay is remains intact. We would also like to confirm whislt your account remains in arrears, your account will continue to register negaive information at the credit reference agencies.

 

As stipulated in your terms and conditions we may, when an account falls into arrears use external collection agencies to collect the debt. In addiion, there may come a time in the future when, if you have failed to make proper repayments against the credit card, MBNA may sell/assign the debt to a third pary.

 

We have considered the other points whch you have raised in your letter and can confirm there are no further documents we are required to provide you with, to confirm that you have entered into and owe money under a valid and enforceable credit card agreement.

 

Please note no further correspondence will be entered into regarding this matter.

 

yours sincerely

 

Rachael Hopely

 

Customer Assistance Manager

[steven4064]

You could try something along the lines of

Thank you for your letter of DATE which I duly note.

 

Although you may have complied with your obligations undert s78(1) of the Consumer Credit Act 1974 as amended by the Consumer Credit (Agreements) Regulations 1983, what you have sent me is not a copy of an executable agreement.

 

Under s172 of the Act, since what you have sent me is in response to a request under s78(1), you are bound by your reply and I will seek an order to that effect should the case come to court.

 

Further, since the documents you have sent do not contain the terms prescribed under Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 and is thereby improperly executed, I will cite s127(3) of the Act in defence of any request by you for a court to enforce the agreement under s65(1) of the Act.

If you want to look up the sections quoted, you can find the whole Act here

[Hopeful1]

Hi Clowders

 

Just wanted to add some support.

 

I dealt with MBNA for OH and they were a pain in the proverbial but we got there in the end - just don't give up.

 

I would also send a seperate letter re non compliance with the SAR. Are you sending off for this to reclaim charges?

[clowders]

Thanks Steven, Will read through Act and then get a letter drafted.

 

 

Thanks for the support Hopeful, Yes I'm trying to claim my charges back as this will substantially reduce the amount I owe.

 

Initally all i wanted was the interest reduced, so I could honour my commitments then they start applying even more charges and completely ignoring my letters.

[clowders]

Hi all

 

MBNA have now gone from pretty pink envelopes with 'we care' letters to hard line letters stating that they will no longer discuss the fact I am stating my CCA is unenforceable.

 

They have also stated that they will not discuss the matter of my CCA being unenforceable any further and refuse to correspond on the subject.

 

This is making me very concerned that the CCA is infact valid as I have not seen MBNA take this stance on any other post.

 

Steven or anyone else out there, have you come across this before? is it scare tactics or do you think it the CCA could infact be valid.....?

 

Thanks

[steven4064]

I had another look at what you posted in post 1. What you have is:

 

scan1-1 is an application form. As a CC Agreement it is void under s59 of the Act

scan1 is part of standard T&Cs. It has two out of the 3 prescribed terms but they could belong to any agreement as it doesn't have your signature

scan2, scan3, scan4 and scan9 are all bits of the same T&Cs

 

What they have sent is completely unenforceable - it has your signature, name and address but not theirs, it doesn't have the prescribed terms ( that is, terms prescribed under schedule 6 of the Consumer Credit (Agreements) Regulations 1983) and it doesn't have a statement about your right to cancel.

 

If they should take you to court, a court would not be able to issue an enforcement order by virtue of s127 of the Act. It is signed before April 2007 when the rules changed.

[clowders]

Steven, thanks for the advice.

 

It has relieved a lot of stress and worry. I will read upon the points you've raised and continue the battle with MBNA.

 

Thanks again