Taken to court by MBNA

[star_scream]

Thank you.

 

I am a little confused. Should his defence be

1. Because they haven't supplied a copy of the CCA

 

or

2. Because the one they sent does not comply with the CCA1974 , not being a properly executed CCA.

 

Notwithstanding that the copy was sent in response to his previous letters , not under s78. And would the terms on the reverse not make it compliant?

[star_scream]

Does the section below from the CCA1974 not apply now?

 

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

[star_scream]

bump for help

[steven4064]

Hi SS

 

Yes that section does apply but, as far as a court enforceing the agreement goes, it is over-ruled by section 127 (3):

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

The application form sent may (and proabably does) fulfil these requirements if the two pages they sent are front and back of the same document.

 

In my view, what has been sent is executable under s127 (despite what I posted earlier - this is a learning expreeience for all of us) although it does not fully comply with s78 (as modified by more recent regulations).

[star_scream]

thanks.

And still enforceable under s59?

[steven4064]

I've taken advice about that - an application form is void under s59 but, if it then becomes a contract, that takes over. In your case, the application form, although it is an application form and it does not comply with s78, is covered by s127(3) (bits in bold in my last post) and a court would probably find it enforceable.

[banker_rhymes_with]

Hello All!

 

Appreciated that this looks like fighting a rear-guard action as the issue is already heading towards Court, but perhaps these are points to consider investigating when planning to Defend this action:

 

(1) Do they have the actual Consumer Credit Agreement (CCA), and can they confirm that this will be produced in Court. If not, then perhaps it may then be possible to question the authenticity of the two sided-copy they have produced thus far. What's to say this was not cobbled together from two different Documents if there are no References between "Front" and "Back."

 

If no Hard Copy of the Original CCA, then what evidence is there to link the Front/Signature Page to what they claim is the "Back" of that same Page.

 

(2) Make a big fuss over s59 and make sure the Judge is shown that it is clearly entitled an Application Form, say this means it's clearly a Pre-Contractual Document. Find and high-light all references to "Application", "Apply", and "Subject to being Accepted" etc.

 

(3) Check the Signature Dates. Did they Sign it after they issued the Credit Card/Credit Token. If after, then this cannot be the CAA, or else what did they send that complied with s63? i.e. what was sent after 7 Days or at the time that they sent the Credit Card/Credit Token.

 

(4) Check the Terms on the "Back", are they correctly stated. If any of the Prescribed Terms are missing, wrong or mis-stated then the agreement may be irredeemably unenforceable via s.127. Check that little box that shows various Interest Rates depending on Credit Limits, as I think that may not be acceptable.

 

(5) Question why the Prescribed Terms, if indeed they are all there and valid, are interspersed with a lot of MBNA Marketing rubbish. Unlike Arabic, English is read from Left --> to --> Right. Our Eyes start at the Top Left of a Docunment and read what's there first..

 

Why, then, is the first thing you Read blabbing on about a Goldfish Card? The 2nd thing you Read is a Barclays Bank Barclaycard, the third thing (now keep up at the back there), a Debenhams Card?

 

By Debenhams, I had lost interest and missed the Financial and Related Terms over on the...............far right, in small print, set out in one...

 

L

O

N

G

 

C

O

L

U

M

N

Tucked over as far as possible, and as small as possible. Call me silly, but it's almost laid out as if they did not want you to read this. But that would be daft, no responsible banker would delibertely do this, bearing in mind how important these Prescribed Terms are. No, they just ran out of room, that's all, as the more important Marketing Bumf clearly needed 80% of the page W-I-D-T-H and about 80% of the Total Page.

 

They had to make the Prescribed Terms tiny, as they had to fit them all into that small column, as that was all that was available after MBNA Marketing had used up the rest.

 

My eyes were already back over on the Left, reading about confidence and bumf, then service and bumf, then bumf about The MBNA Plantinum Plus Card Option and some pretty pictures, and then a BIG TELEPHONE NUMBER.

 

OK, being serious now, in my opinion, the key Prescribed Terms are being deliberately played down, as 80% of the "Back" page is effectively MBNA Marketing and Advertising.

 

Does this square with the "Wilson and another v Hurstanger Ltd" Judge who made it clear how these should be shown:

 

The case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 confirms that the prescribed terms must be within the agreement document itself and cannot be contained in a separate document and simply be referred to;

 

"33 In my judgment the objective of Schedule 6 [of the Agreement Regulations] is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

Looks to me like the key Prescribed Terms are interspersed with a lot of nonense. Handy that, as it stops people from ACTUALLY READING these Terms!

 

I hope this may help.

 

Cheers,

BRW

[star_scream]

Thank you for your valued input BRW, and for taking the time to send such a reply.

 

He is still waiting a CCA in response to his s78 letter. You see, if he denies he ever got the above, then he does not have an agreemnent at all. They replied to his letter referring him to previous letters where they sent the above app form.

 

They still have to send another though as it has been longer than a month.

 

Steven seems to think that s59 is overruled by the reason that it becomes a contract and is unenforceable under s127.

The conditions on the back also have the last word missing on each line where they photocopied. Most of it, I would say is ilegible.

 

There were no t & C's sent.

The only thing on the front is a mention of Condition 11 on the T&C's, nothing refers to the conditioins on the back.

it says 'before you sign this agreement you should read condition 11 on the T&C's provided. ( That's not referring to overleaf)

[steven4064]

IMHO there is a difference between being compliant with the CCA (s78, etc) and being enforceable. Section 127(3) seems to imply that a court may take it into its head to enforce any old rubbish that has the debtors signature and all the prescribed terms.

[star_scream]

Looking through his letters from MBNA. When they sent the above CCA, they actually wrote

Copy of the Original Credit Card Application

 

Not agreement- so they should then reply to his last s78 letter asking for an agreement

 

Is there anything in this wording?

[banker_rhymes_with]

Hello Steven and Star Scream!

 

It may also be an idea to investigate the s85 issues, i.e. the banker is supposed to send a copy of the Original Consumer Credit Agreement (CCA) every time they produced a New Card during the time the alleged Account was running. They can omit Signatures in that case, but it needs to be a Copy of the Original Agreement I understand.

 

I've certainly never, ever, seen one sent with all the dozens and dozens of Cards I've been issued with over the Years.

 

I understand it is standard practice to send them in the USA, but the bankers over here have collectively neglected to comply with that Section (s85) of the Consumer Credit Act 1974.

 

I gather some have been able to make something of the s85 issue? Potentially, that could mean you can submit a Consolidation Claim for all Interest and Charges from the first s85 boo boo, plus 8% on top, but not the Contractual Rate as it's a restitution claim, or something along those lines.

 

Looking through his letters from MBNA. When they sent the above CCA, they actually wrote

Copy of the Original Credit Card Application

 

Not agreement- so they should then reply to his last s78 letter asking for an agreement

 

Is there anything in this wording?

 

Not sure, but Steven may know...Steven? Help!

 

I have seen a Letter where they hedged their bets and called it an "application/agreement". Might be productive in those cases to ask them if they could please decide which one it is!

 

Cheers,

BRW

[steven4064]

It seems that in more recent times MBNA have tried to save paper (doing their bit for the environment, perhaps ) by combining the application form and credit agreement - or so it would appear from some of the things I have seen them send out.

 

If you have the letter still, you could try throwing it back at them that they admit to sending a copy of the application form and not the CCA as requested.

[star_scream]

Thanks to both of you for your replies.

 

The s78 letter was received 12/3/08. They issued a summons on 20/3/08. That's 5 working days in between. Should they have not held back on the summons until they had sent a copy?

[steven4064]

Should they have not held back on the summons until they had sent a copy?

Yes

[Safecracka]

Hi SS

 

I think you should examine the copy very carefully.

 

Does the print area on the back cover a similar area as the front?

 

On the back it looks like there is a panel missing from the left hand side. There should be a word before 'Form', also before the line with 'confidence' and 'service'. If this was the case would the page size of the back match with the front?

 

My 'agreement' is very small, but yours looks quite large so should have been folded. Are there any signs of creases from the original on the copy, if so they should match back and front.

 

However, what looks like a date code at the bottom on the back, '04-01' would seem to be OK as the front is signed on '05-01'

 

Hope this might be helpfull, good luck

 

regards

sc

[Safecracka]

Hi

[banker_rhymes_with]

Hello All!

 

Make sure they are required to bring the actual document to Court as well.

 

Not a Photocopy.

 

Not a Microfiche Scan and Print.

 

The real thing.

 

Something you can pick up and hold that clearly has your Signature on one side in real ink.

 

If they don't, then have a plan ready to rip holes in this document and question if it's really a Copy of the original Document. Question if the original really was two-sided. Where's the proof?

 

Suggest it is a two-sided Photocopy of TWO DOCUMENTS. Where's the evidence that the "Back" was really part of your Agreement.

 

HTH

 

Cheers,

BRW

[star_scream]

On the back it looks like there is a panel missing from the left hand side. There should be a word before 'Form', also before the line with 'confidence' and 'service'. If this was the case would the page size of the back match with the front?

SC Great observation, I think you are correct. It looks like it is 2 forms merged on the photocopy.

Also the code you quoted on the bottom is not the same as the code on the bottom of the first page. Do you think that they could be different forms?

 

Thanks BRW for your help as well

[star_scream]

Another thing that puzzles me is the fact that they did not enter any information in the 'personal details' on the RH side. ie How long at present address/ Mortgage details etc..

I didn't blank these out, they are not there, something I would have thought necessary to determine credit level etc..

[steven4064]

I would write and point all these things out to them and ask them to explain. Also to explain how they think this complies with your request under s78 (as amended), particularly regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

[banker_rhymes_with]

Hello Star Scream!

 

Maybe just ask them:

 

"Have you really got the Original Document?"

 

If they say "Yes", then you'll have that on record. When in Court, if they don't then bring the Original along, they will have to explain why not when they said they did have it.

 

If they say "No, it's a Copy". Great, then pry that to pieces, and ask them for conclusive Proof that the Copy sent is a Copy of your Original Agreement. Just them saying it is, is not sufficient. Where are the references that link the "Front" to the "Back", Printers Marks, Press References, MBNA Document References.

 

If all they have is a Copy, then that is an area you must exploit. How, exactly, was the Original copied? By whom? On what Date? Evidence please? Document Filing Management Logs?

 

As I think Steven has just said, get them to explain all of these odd issues we've observed with the Copy they have sent you.

 

If the thing they have Created is just a lash up of other Documents, they will soon start to get a little concerned. Court is looming, and soon they will know that you will be making very sure that every aspect of this Copy will be inspected by the Judge.

 

It's not over yet!

 

Cheers,

BRW

[star_scream]

.......

[steven4064]

In court they would have to produce an original - the court will not accept a copy at all.

[banker_rhymes_with]

Hello Steven!

 

Ah, that's very useful to know.

 

So, all the more reason when doing a s77-79 request to ask them specifically DO YOU HAVE the Original.

 

Would it then be a case of...

 

No Original = No Agreement?

 

Cheers,

BRW

[steven4064]

No Original = No Agreement?

When it got to court, I think so