MBNA/Abbey Card Possible CCA Non compliance

[stroke a badger]

Why do i offer to help friends

 

I have volunteered my services to try and help a friend who has fallen on hard times. Long story short he was made redundant 4 months ago, lost his house at the start of this month and is on the verge of a mental breakdown due to the amount of pressure being applied by 5 creditors and one DCA. All of this has been VERY well hidden, well that was until a couple of weeks ago when I found out what was going on.

 

We have agreed a reduced repayment plan with 3 creditors, one creditor has agreed to write off the debt as they have admitted to not having a credit agreement (NatWest credit card) and we are waiting on 1st Credit to reply to our CCA request. This just leaves Abbey MBNA who have been a nightmare!!!

 

Due to financial restraints and trying to keep his house from being repossessed nothing has been paid onto the MBNA card for 4 months and as a result just over £100 in charges have been applied. The account had until recently been maintained and payment had been made with out fault for 9.5 years, this it would seem means nothing to them as they point blankly refuse to agree to a reduced repayment program and have been phoning 5-6 times a day demanding payment and most recently court action. This as you can imagine has not helped matters!

 

We requested a copy of the Credit agreement, and received this on Thursday.

 

 

This is the reverse

 

 

We also received six pages of T&C's.

 

Now as far as I can see the agreement is not enforceable as it is missing a credit limit, there are no cancellation terms on the signed document and the "agreement" is a card mailer. Also there are a number or inconstancies between the agreement and the provided T&C's, the most significant being the APR. On the agreement it states that the APR will be 15.9%, where as on the T&C's it is 34.5%!!

 

Should i write a letter to MBNA pointing out their failings and get them to agree to a reduced full and final payment which would have to be no more than 10% or seek advice from Trading Standards to hopefully get the debt written off. Falling that that should i just go straight to plan B which is litigation.

 

Any help would be greatly appreciated.

[stroke a badger]

I forgot to mention that as the account was created over 9 years ago we are unable to lodge a complaint through the FOS.

[stroke a badger]

Bump:)

[stroke a badger]

Bump

[steven4064]

Hi SAB

 

It oes have the credit limit - the paragraph labeled 1. on side 2 satisfies that requirement (believe it or not). However, the prescribed terms must be on the same piece of paper as the signature and it must have the borrower's full name and address too. This is not an enrorceable agreement. It is actually just an application form - it says "please supply an Abbey National Credit card....

 

As for MBNA being a nightmare, I'm afraind that is their true colours. Send them the telephone harassment letter, tell them that you will only communicate in writing, report them to the FOS, start a claim for repayment of charges - In other words, throw the book at them.

[Safecracka]

Hi Badger

I too have recently received a very similar document from 'our friends' in Chester. Mine does have my name and address on the front, and, like your friend's signature form, the prescribed terms are on the reverse. I will be scanning mine onto my thread soon. I think I applied for my card on the phone and this document was sent to be signed, as the name suggests 'Signature Form'.

 

Steven

You state in the above post

However, the prescribed terms must be on the same piece of paper as the signature

In this case, does the reverse side of the same document, qualify it as being on the same piece of paper ??

I see however that there does not seem to be anything on the front of the document that refers to the reverse.

The only reference is to having received 'A copy of the Credit Card Terms & Conditions'

Whereas on the reverse it states 'Financial & Related Conditions'

 

Best of luck for your friend Badger

 

regards

SC

[Safecracka]

Badger

Just had another look at your friends document, and it looks like name and address were there and have been blanked out.

 

Also like mine, right at the top there is half a pair of scissors where it has been detached from a letter or something.

 

See my thread: Safecracka vs MBNA (The Law)

(please could someone explain how to post a link?? thanks)

 

sc

[steven4064]

THe trouble is with a copy, you can't tell if it's on the same peice of paper r not. Even if they print it that way there is no saying they haven't copied 2 entirely different documents onto different sides of te same sheet.

 

To be enforceable, they must ne able to domeonstrate that you agreed to the terms - that means your name and address and your signature and the terms all on the same page.

[Safecracka]

I understand what you are saying Steven that you can not tell from a copy, but with respect, if this went to court and Abbey turned up with the original and the prescribed terms were on the reverse of the same piece of paper, and nothing on the front to refer to the other side, in your opinion would this then be enforceable? Assuming name and address and signature etc were all on the front.

[car2403]

The prescribed terms need to be on the same document with the signature - it doesn't have to be on the same page, but they would have to prove that the terms are part of the signature document to allow enforcement.

 

What was the date of signature, please?

[Safecracka]

Hi Car

October 2000

[car2403]

Without the name/address of the debtor, it is totally unenforceable.

 

1. 4.3 Do all parties have to be named in the agreement?

Yes. Reg 2(4)(b) requires, immediately after the heading to the agreement, details of the parties as set out in Sch 1 para 2. This comprises the name and a postal address of the creditor and of the debtor. If there is more than one debtor, each must be named and a postal address shown for each.

[stroke a badger]

Hi SAB

 

It oes have the credit limit - the paragraph labelled 1. on side 2 satisfies that requirement (believe it or not). However, the prescribed terms must be on the same piece of paper as the signature and it must have the borrower's full name and address too. This is not an enforceable agreement. It is actually just an application form - it says "please supply an Abbey National Credit card....

 

As for MBNA being a nightmare, I'm afraind that is their true colours. Send them the telephone harassment letter, tell them that you will only communicate in writing, report them to the FOS, start a claim for repayment of charges - In other words, throw the book at them.

 

So In this scenario where the T&C's provided do not relate to those supposedly "agreed to" at the time of the opening of the account, the document provided is not enforceable. If this is the case then I suppose the only cause of action we can take is to complain to Trading Standards.

 

I will be tomorrow posting a Telephone harassment letter.

[stroke a badger]

It looks like they mean business - received yesterday.

 

[stroke a badger]

Bump

[car2403]

This latest letter means very little, as it isn't a Default Notice in the prescribed form under the CCA - this could be a good thing, as you may have their attention and that they realise they are on a hiding to nothing.

 

Personally, I wouldn't do anything, as they've already shown their hand - you don't want to show yours at this early stage, so this letter is appropriate now; (adapt to suit)

 

I refer to your recent letter dated XX/XX/XXXX.

 

You will see from your files that this account is “in dispute”. I am writing to inform you that this dispute still stands and has not been resolved by your company.

 

 

 

As this account is in dispute and you were aware of this and are continuing to carry out collection activity, I now feel that you are in breach of your obligations under;

§

The Office of Fair Tradings Collection Guidelines – s2.8;

o

“i. failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

o

“k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

§

The Banking code

§

Your Consumer Credit License

 

 

 

 

As such, I must ask you to take notice that you must cease all collection activity with immediate effect. You have failed to produce a properly executed credit agreement and as such I dispute the entire balance of the alleged debt is unenforceable. As there is no agreement between us, you also do not have permission to continue to contact me regarding this account, either by post or by personal contact, be that by telephone or visits to my property. In fact, OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you persist in sending "doorstep callers" to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction from the Court.

 

I also deem any further collection activity, of any nature that involves contacting me in relation to this account, an act of personal harassment, for the reasons outlined in this letter. Please ensure that your system is updated to reflect this, as I will bring any further letters or phone calls to the attention of the Police, to whom I will make a formal statement regarding your conduct given I have already warned you your behaviour causes me to feel harassed.

 

I am of the view that your continued harassment of me puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by calling me, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded and used as evidence in any further formal complaint.

 

If you wish to resolve my complaint, as has been suggested in your recent letters to me, you must supply the documentation previously requested to substantiate your claims against me under the alleged agreement. Failure to do so will result in my ignoring any further letters from you and the actions outlined herein being taken in complaint against you. I will not correspond further with you regarding this issue unless you can fully substantiate your claim as I have outlined.

 

Yours faithfully

 

You could fit this in there somewhere too;

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

 

Sorry I don't have time to edit/amend/hash these together for you, but again I wouldn't worry too much about this at this stage... this is just some pointers to help you on your way if you wish to reply at all.

[stroke a badger]

Car2403.

 

You are an absolute star, i'll keep you updated.

[stroke a badger]

Update!!

 

As we are unable to take this to the FOS, and Trading Standards don't seem to care. the only course of action as far as I can see is litigation.

 

I might need some help with the POC - any pointers would be VERY much appreciated.

[car2403]

You've got them on the run, here, IMHO. If they had a correctly executed agreement, they would have said so - they haven't and are choosing to hide behind jargon and "mumbo jumbo" in the hope you'll cave in and pay.

 

They haven't counted on you being part of CAG and actually knowing what your rights are and how to enforce them.

 

Interesting;

 

"We confirm that we have removed your telephone numbers from our system"

 

But, then;

 

"However, if you fail to respond to any correspondance within fifteen days of receipt then these telephone numbers may be reinstated"

 

So, you've told them to remove the numbers and not to call you. They've choosen to do that, but "save" them on their system for future use. Interesting concept. If they do call you at some point, you must say;

 

"This account is in dispute and I do not discuss personal financial information over the phone. Please contact me by post and I will consider your correspondance"

 

I think you're right about the litigation element, but I love the fact they've said they won't enter in to further correspondance.

 

If this was my case, I would send them this;

 

Thank you for your letter dated 23 April 2008.

 

As you are aware, I disagree with your view of the "agreement".

 

I would therefore invite you to take legal action against me, if you are truly of the belief that the agreement is "legal" and enforceable in a Court of law.

 

If you fail to do so, please take this letter as a pre-action protocol and of evidence of my intention to take legal action against you, within 14 days of your receipt of this letter, for the reasons outlined in my previous correspondance, if you do not comply with my requests outlined therein. Such action will be for a declaration, in the form of a Court Order, outlining that the debt under the agreement is unenforceable - this is my right under s.142 Consumer Credit Act 1974. The action will further be for recovery of damages to my credit reputation by your sharing of information which is inaccurate, when the Court declares the debt as unenforceable, and will seek to force your compliance with the Data Protection Act, in terms of s.10 and s.12 of that Act, along with damages at the discretion of the Court as available under s.13. I will also seek an order from the Court under s.14(1) and s.14(3) of the DPA. This action will be at cost to Abbey, should it become necessary, in the form of Court costs being added to my claim.

 

If you are at all unsure as to the content and legal effect of this letter, I would suggest that you refrain from replying again without seeking advice from your Corporate Legal Counsel.

 

Yours faithfully

 

If they don't take you to Court, (which will be cheaper - probably faster - for you, if they do!) you can then make your decision.

[steven4064]

I would just advise a little caution here. You need to be sure that the 'agreement' in post #1 is definitely not enforceable and that hinges on whether the 2 parts are back and front of the same document.

 

You say the application was made in 2000 - is there any information on the second part that would indicate that it is from a later date? I was wondering about the '10/01' at the bottom right.

[Fred Bassett]

Don't know if I've missed something here, but the first image is obviously only the bottom part of the page - you can see the dotted line and the scissors. What was above this? Have they sent you the entire document?

 

Fred

[Fred Bassett]

Hi Badger, the other thing I meant to mention: Is your friend looking after himself? This kind of situation can have an enormously detrimental effect on your health - I know this through personal experience. Doctors are much better now at dealing with the effects of stress-related illness. Tell him to take care.

 

Regards.

 

Fred

[stroke a badger]

Thanks for asking Fred B. Chris is doing fine, a little stressed at the moment but taking everything in to consideration he is ok.

 

The scanned image is all that was received, well apart from the T&C's which are hard to read.

 

I need to have another look at everything received, but that will have wait till tomorrow as I need to complete an Allocation Questionnaire for my wife's PPI claim against GE Money.

 

The things we do for friends and family

[Fred Bassett]

Thanks for asking Fred B. Chris is doing fine, a little stressed at the moment but taking everything in to consideration he is ok.

 

The scanned image is all that was received, well apart from the T&C's which are hard to read.

 

I need to have another look at everything received, but that will have wait till tomorrow as I need to complete an Allocation Questionnaire for my wife's PPI claim against GE Money.

 

The things we do for friends and family

 

It's worth a look. My guess is that it will have the words "application form" written at the top of it. I would definitely write and ask for first part of the document to be supplied.

 

Regards.

 

Fred

[stroke a badger]

I also forgot to say that this was also received - sorry I forgot all about it.