MBNA - Is This Enforceable?

[Mister Twister]

I am currently dealing with three creditors and have other threads. I have started this thread to deal specifically with MBNA.

 

I have just recieved this reply from MBNA to my CCA request. The letter they sent also included current T&C's but I have never seen these before. They also included a statement and have applied a £12 late charge and £107 in interest.

 

 

 

 

 

 

 

 

Can they continue to charge interest while this is in dispute?

 

Is this application form an enforceable document?

 

Any advice would be much appreciated.

[ScarletPimpernel]

 

 

Can they continue to charge interest while this is in dispute? No, but they will. In their next letter they'll say that they have decided that the dispute doesn't exist because they say it doesn't.

 

Is this application form an enforceable document? No, but again, MBNA won't admit it.

 

Any advice would be much appreciated.

 

You can maintain the dispute status because MBNA have not complied with your CCA request. S.78 requires the creditor to provide, in addition to the agreement, any other document referred to therein - i.e. the terms and conditions. Clearly an agreement entered into 2000 would not refer to T&Cs in the future! If challenged, MBNA will say that the current T&Cs are provided to be helpful, and so you understand the current position; this is utter drivel, of course, and designed to draw attention from the fact that MBNA don't appear able to provide old T&Cs.

 

However, dealing with MBNA is not easy; once started, their collections process seems unstoppable. Expect a torrent of risible letters and threats, which will end when they sell the debt. They will do this even when there is a clear dispute. However, whichever DCA buys it will then discover it to be unenforceable and is more likely to take notice of disputes and complaints than the clowns at MBNA.

[AndyOrch]

Hi Twister

 

Nice MBNA application form as it states in their covering letter.It as no perscribed terms and is not enforceabe perhaps you ask them did they forget to enclose it !!!

 

 

 

Regards

Andy

[Slartibartfast]

This is very similar to the application form I received back. The prescribed terms appear to have been on the back.

 

Same story with the latest T&Cs though.

[Mister Twister]

Ok this is what I thought.

 

Slartibartfast I have just read your MBNA thread. Looks very similar to my case.

 

Do the terms on the back of the document constitute 'prescribed terms'? I ask this because if this goes to court I would expect a judge to look at the application form as one document and the terms are clearly printed on the back and not a seperate page/document.

 

The application form has been date stamped and clearly executed by the lenders signature.

 

I need to write back to them so will have to adapt a letter to suit my circumstances.

 

The terms on the back (borrowed from Slartibartfast thread) are:

 

MBNA

FINANACIAL AND RELATED CONDITIONS

for the MBNA Credit Card and Credit Card Cheques

IMPORTANT - YOU SHOULD READ THIS CAREFULLY - YOUR RIGHTS

The Consumer Credit Act 1974 covers this Agreement and lays down certain requirements for your protection which must be satisfied when the Agreement is made If they are not the Bank cannot enforce the Agreememt against you without a court Order.

The Act also gives you a number of rights. You have a right to settle this Agreement at any time by giving notice in writing and paying off all amounts payable under the Agreement. lf you have obtained unsatisfactory goods or services under a Transaction financed by this Agreement, apart from any purchased out of a cash loan, you may have a right to sue the supplier, the Bank or both. Similarly if the contract is not fullfilled perhaps because the supplier his gone out of business, you may still be able to sue the Bank.

if you would like to know more about the protection and remedies provided under the Act you should contact either your local Trading Standards Department or your nearest Citizens Advice Bureau.

LOSS OR MISUSE OF CREDIT CARD

if tne credit card is lost, stolen or misused by someone who obtained it without your consent. you nay be liable for up to £0 of any loss to tne Bank. IF it is misused with your permission you will probably be liable for ALL losses. You will not be liable fof losses to the Bank which take place after you have told it of the theft, etc.

Set out in paragraphs 1-15 below are some of the provisions contained in Conditions 1 and 2 of the MBNA Credit Card Terms & Conditions. The other conditions referred to in these paragraphs and the applicable definitions can be found in those Terms & Conditions.

1 We will from time to time choose the credit limit and notify you of this.

2 We will choose the first statement date. Later statement dates will fall approximately one month apart. If you ask, we may change the statement date.

3 By the payment due date shown on tne relevant statement, you must make at least the minimum payment shown on the statement unless we allow a payment holiday under condition 2.4

4 The minimum payment shown on the statement will be the greater of

(a) 2% of the Account balance as shoown on the statement; or

(b) £5, or the Account balance as shown an the statement if less than £5:

except as mentioned in conditions 2.4 3.5 and 3.6

5 We will charge interest on the outstanding amount of:

(a) any Retail Transaction at 1.1678% monthly.

except as mentioned in condition 2.1

(b) any Cash Transaction Cheque Transaction or any Balance Transfer:

{1} if made during the period starting on the date of opening the Account up to and including 01 January 2002. at 0.1610% monthly during that period, and then at 1.1678% monthly, and

{ii} in any other case, at 1.1678%. monthly and

© any charge under condition 13.1 at 1.1678% monthly

6 We will charge a handling charge for a Cash Transaction and/or a Cheque Transaction at 1.5% of the amount of the Cash Transaction or Cheque Transaction. minimum £2. maximum £25

7 This table shows how the APR depends on the type of Transaction, when interest is charged, and the credit limit.

 

 

8 The APR does not take into account any of tne followng alterations. We may from time to time alter the interest rate on any item, alter any charge under this Agreement and alter the basis on which any interest is is charged or any charge under this Agreement is made, by such notice in writing to you as is required by law, except as mentioned in condition 1.11 Where this is required by law we will at the earliest opportunity inform you of a valid reason tor altering any charge

9 We may at any time reduce the interest rate on any item incurred during a promotion period by notice under condition 1.8 If we do this, we will charge interest on the outstanding amount of the item at the reduced rate during the promotional period, and then at the normal rate applying to the item. We may not remind you that the promotional period or reduced rate is about to end or has ended

10 We will charge interest on the outstanding amount of

(a) any handling charge at the rate then applying to the relevant Cash Transaction or Cheque Transaction; and

(b) any interest at the rate then applying to the relevant Transaction or charge.

11 For the period storting on the date of opening the Account up to and including Ol January 2002 we will not increase the interest rate on any Cash Transaction, Cheque Transaction. Balance Transfer or on any handling charge.

12 We will not charge interest on the outstanding amount of a Retail Transaction shown on the latest statement, if the whole Account balance as shown on the previous and latest statements 1s paid by the payment due date on the relevant statement.

13 We will charge interest on the outstanding amount of any Retail Transaction (except as mentioned in condition 2.l), Cash Transaction, Cheque Transaction, Balance Transfer, charges under condition 13.1, handling charges and interest starting on the transaction date and ending on the date of full payment.

14 We will charge interest on a daily basis both before and after any judgement

15 We may at any tame allow you to omit all or part of a minimum payment during the payment holiday specified in a notice under condition 14 If we do this, we will charge interest as if no payment holiday had been allowed, and we will not extend the period within which payment must be made in order to avoid interest on Retail Transactions

[ScarletPimpernel]

Prescribed terms are supposed to be before the signatures, IIRC.

[Slartibartfast]

SP, this bugged me for a whiile and I've still not got to the bottom of it. It would appear that the form(layout) of an agreement was subject to Regulations that only came into effect in 2003 (?) and were not retrospective, though I'm not certain and would be grateful for any correction.

 

Mister_T, I had taken it that if the Financial Particulars were indeed on the back of the original and not just photocopied on then they would constitute all prescribed terms neccessary.

 

I have no expertise and have been reliant on the opinions of others to gain an undestanding of the Act and regs and I'll be following this thread too with more than a little interest.

 

Cheers

[AndyOrch]

I concur SP

 

 

 

Regards Andy

[Mister Twister]

Ok - So I want to write a letter explaining that this is in fact an application form and not a Credit Agreement but what should I include in my letter?

 

What am I saying is wrong with this document and why is it not a Credit Agreement?

 

Could someone please confirm if Slartibartfast is correct in thinking that the terms are included in the agreement?

 

I seem to be always asking questions - I do look at other threads but sometimes find it difficult to pull the answers I need. Hopefully once I have been through this for myself (and I am prepared to see this to the end via the courts if necessary) I might have some advice to dish out. In the meantime thanks folks!

[Slartibartfast]

From what I can tell its an application form that is enforceable.

 

Lack of T&Cs refered to as per the s78 CCA request is another question.

[Mister Twister]

I would be interested if anyone can find a reason why this application form/agreement is not enforceable?

 

Thanks in advance.

[Mister Twister]

MBNA are calling my mobile number. I told the lady the account was in dispute since they had not provided a copy of the Credit Agreement. She said they have. When I explained I would not discuss it further on the telephone and hung up she immediately called me back.

 

I need to know if the application form they supplied me is enforcable. If so then I will just have to accept the debt is mine and deal with it, otherwise I will fight them in the courts if necessary.

 

Any view on why this might not be enforceable?

[steven4064]

Schedule 6 of the Consumer Credit (Agreements) REgulation 1983 says that a Cedit Card Agreement must contain the follwing prescribed terms:

 

1. A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

 

2. A term stating the rate of any interest on the credit to be provided under the agreement.

 

3. 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.

 

For a credit card, term 3 is usually a description of how minimum payments are calculated.

 

On the same page it must have your signature, full name and full postal address. Otherwise it is not enforceable.

[B3rty]

On the same page it must have your signature, full name and full postal address. Otherwise it is not enforceable

 

Steven, this should read in the same document its there no neccessity to have it all on one page

S1 1553 S.2(4) F says

 

and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a whole and shall not be preceded by any information apart from trade names, logos or the reference number of the agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross

references to the terms of the agreement.

[steven4064]

Possibly, although the quotation in your post doesn't seem (to me) to be relavant to the issue. If they send you a copy then who is to say it is not from two entirely different documents?

[B3rty]

Yes I agree I was just correcting the term "page" as technically its incorrect........however in this case there could be a legal argument to prove that the two pages are not linked...and thats where CPR 16 7.3 is useful as this requests that the original is produced in court, which of course they cant do so if you found enough to show they pages are not linked i.e no matching reference numbers e.t.c you could present a pretty good case.

 

Also the 2nd page is full of pictures and wording that is more than the trade names, logo's and reference numbers that are the only elements allowed to be shown in this area......

[purpleswanage]

I may be wrong, but doesnt it need to show the credit limit, how its derived or that there is no limit? Otherwise it's totally uninforcable?

[Mister Twister]

I am preparing a letter to send to MBNA today.

 

They called me again despite me writing to them and asking them not to as I would consider it harrassment.

 

The woman was very agressive with me on the telephone and at one point asked me to stop making her have to shout! She bombarded me with questions then did not allow me to answer them as she said I was interupting her. I asked if the call had been recorded and she said 'of course!' so I want a copy or transcript of the call since she said a lot of things that were simply not true and tried several tricks to make me admit the debt was mine.

 

She denied that the document sent was an application form, she said it was up to them to decide if the account is in dispute, she asked me why I would spend someone elses money then think I would not have to pay it back and she tried to get me to admit I had signed a credit agreement. She said this was my last chance or my life would be severely effected for years to come due to my creidt file.

 

The £1 I sent to pay for the request was used to credit my account and she claimed that because I made a payment on the account last month I must accept it is my debt. I told her that the £1 was not a payment on account but to cover the statutory fee for a copy of the agreement which I still had not recieved.

 

Eventually I was forced to hang up on the woman which maybe I should have done as soon as I took the call.

 

Although I am dealing with three creditors this is the first time I have actually felt attacked by them.

 

I will post the letter here before I send it for comments and suggested amendments.

[AndyOrch]

" Eventually I was forced to hang up on the woman which maybe I should have done as soon as I took the call."

 

Took the words from my mouth dont berate yourself with the actions of these muppets.That is after all their gameplan

 

 

Regards

Andy