Taken to court by MBNA

[pt2537]

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

 

 

Hi BRW, in any personal CCA requests i do

 

Your street

District

County

Postcode

 

DATE

 

 

The Bank

Street

District

County

Postcode

 

Dear Sir/Madam

 

Re:− Account/Reference Number xxxxxxxxxxxxxxxxxxxxxxxxx

 

With reference to the above agreement, I require that you provide me a true copy of the credit agreement

 

I am aware that section 78(1) of the Consumer Credit Act 1974 sets out clearly what is required to comply with my request and quote “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it” For clarification I require a copy of the agreement, any terms and conditions from the time when the agreement was executed together with a copy of current terms and conditions and a copy of the cancellation notice if the agreement refers to “Your Right to Cancel” within it. I also require a statement of account as laid out also within Section 78(1).if there weren’t any terms and conditions then please confirm this in your response

 

I am entitled to receive the information on request. I enclose a payment of £1.00, which represents the fee payable under the Consumer Credit Act 1974.

 

I note that section 172 outlines that statements by creditors are binding where made under inter alia section 78(1) and I take this to be that any reply made in response to this request is binding upon you. Therefore you should ensure that all documents request are supplied. Any missing documents will be considered not part of the agreement and could therefore affect the enforceability of anything you send.

 

I understand that Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) at regulation 2 sets out the required time frame for compliance with this request as being 12 working days from receipt

 

 

Should you fail to comply with my request as outlined above, I shall consider the account in dispute. I am aware that where a creditor fails to supply the requested information the creditors rights to enforcement are restricted until such time as they comply. I am also aware that there are certain terms that are required to be within the “Agreement” and should these terms be mis-stated or not present the agreement can be rendered unenforceable in law.

 

Notwithstanding the above, I note that the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) at Regulation 3 allows the Signature box and signature to be omitted in a copy document but the copy document must contain all the terms off the agreement contained within the signed executed original document

 

I respectfully request that you provide a copy of the original agreement signed by myself that you hold on file and while I accept that you can omit the signature box for the purposes of compliance with my request, you will be aware that any challenge to the agreement in court would require the signed copy of the original agreement. If you still reject this, please provide clarification on the status of the Original Credit Agreement and confirm either that you hold the original signed agreement on file or a copy of it on microfliche or that you no longer hold the file

 

Also please provide details of who I may address a subject access request to under the Data Protection Act 1998 section 7 so that I may obtain a copy of the original agreement should you fail to forward a copy in respect of this request

 

Therefore I look forward to receiving this information within the time frames as indicated above

 

 

 

 

 

Yours faithfully

 

XXXXXXXXXXXX

 

 

 

 

Thats the letter i use when i make a cca request, and i have found it has the required results too

[banker_rhymes_with]

Hello Steven and pt2537!

 

Steven...

 

When it got to court, I think so

 

I wonder how many people have given in to their Threats on the basis of some cobbled together s77-79 thing?

 

Likewise, how many Court cases the bankers didn't turn up to knowing they did not have an Original Agreement.

 

You can see their logic...make one up from bits, Harass the punter, and hope their Bottle goes before Court. Have a Lawyer on standby there in case Punter does not show, and win by Default.

 

They Win every time unless they are dragged into Court with their cobbled together thing, in which case they will probably not produce it in any event.

 

It's a game of bluff, is it not!

 

pt2537...

 

Thats the letter i use when i make a cca request, and i have found it has the required results too

 

Many thanks, I've sent off a few CCA requests, but will edit some of this if I may when I send them reminders once past the 12 Working Day threshold.

 

Hope some of this is useful to the Thread, not trying to hi-jack it.

 

Cheers,

BRW

[star_scream]

pt2537

 

I sent you aPM last week hoping you could help this guy with a defence. It has to be in court next Friday.

Could you help out at all please?

[pt2537]

Hi there

 

sorry i havent been through my PMs as i have a law assignment due on the 16th and i have been frantically studying etc

 

im not sure how much help i will be able to give but i will take a look over the thread tonight and see what i can add

[star_scream]

Hi there

 

sorry i havent been through my PMs as i have a law assignment due on the 16th

 

im not sure how much help i will be able to give but i will take a look over the thread tonight and see what i can add

 

 

Thanks I appreciate that. This will probably the last time I volunteer to help anyone.

[pt2537]

Hi SS

 

Ive had a look over the thread, now do you have a copy of the agreement they sent (if any)?

 

how you defend will entirely depend upon what they supply in reply to your CCA request.

 

basically, what i do when writing a defence is pick apart the agreement and raise all the points which are at fault.

 

 

if you do not have a copy of the agreement then all you can do is file a defence stating that they have not replied

 

i posted a defence yesterday on a thread that may help you out, the link is here

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/135558-help-court-summons-restons-3.html#post1465660

[star_scream]

Hi Paul,

 

The agreement they sent is in post #2. This was sent after sending the original letters. In the letters in post #1. I assume they thought 'copy of contract' was the credit agreement.

 

They kept asking for £1 which he never sent. In the end they sent the above agreement, but in their letter they said it was a copy of his application ( not agreement)

 

Anyway, when I was asked if I could help, I told him to send of a s78 letter with £1. This was received on 12/3/08 by MBNA ( Not Optima). Their reply to this was to refer him to previous letters. ( I assume that means the agreement they had already sent)

However, as it has been more than 1 month since, they still have the obligation to send one, and , as yet nothing has been sent.

[pt2537]

ah ok, well for some reason i cant see them?????

 

let me try changing browser and see if that makes a difference as im using IE6 currently and not FF which i usually use

 

give me two secs and i will take another look

[star_scream]

Ok Thanks.

 

I have read your defence ( read, not fully understood:grin: ). I must congratulate you on your expertise, that is brilliant.

 

No6 By the way has gone a bit gobbledy gook.

[pt2537]

now then,

 

after looking at the document, i have reservations as to its validity

 

it simply appears to be two separate photocopies,

 

now if you look at the bottom of page 2, you can see where the black mark from the bottom of page one has bled through, now that means that page one was a photo copy before page 2 was copied if you see what i mean

 

page 2 appears to be more of a advert which has been superimposed upon the back of page 1

 

thats how i see it, so the prescribed terms would not be in the document and therefore it would not be enforceable

 

does that make sense?

[pt2537]

ah

 

point 6

Consumer Credit Act 2006 (c. 14) - Statute Law Database

 

thats the link it should have been

[pt2537]

to add to what ive alreadyt said

 

how come, on the page one you cannot see the bleed through from the back page, yet on page 2 the page 1 is clearly viewable

 

doesnt anyone find that a wee bit strange?

[star_scream]

Sorry paul, you've lost me.

 

One thing that safecracka came up with as well was that on the left hand side of p2, there seems tro be something missing. At the bottom is says Form, contact us.....

 

Now should there have been something before form do you think?

 

They could have moved the advert over to add the terms on.

[star_scream]

to add to what ive alreadyt said

 

how come, on the page one you cannot see the bleed through from the back page, yet on page 2 the page 1 is clearly viewable

 

doesnt anyone find that a wee bit strange?

 

I see that, but what does that mean?

[pt2537]

ok, to put it into plain english,

 

quite simply i believe that page one and page two are NOT part of the agreement that was presented to the debtor for signing.

 

there are massive discrepancies there, not least the fact that we seem to have one way translucent paper here !!! it is impossible for a copy to only bleed through one way on paper, if it comes throught one side the logic says it must go the other way too and in this case, page one is clearly viewable from the bleed through on page 2 BUT when you look at page one YOU CANNOT SEE PAGE 2 through it

 

i strongly believe that the application form in post one did not have the prescribed terms in it and as a result they have taken a magazine or something like it and copied it to make it look like it is part of the same document

[star_scream]

I see. Well done Sherlock. So, now we call their bluff?

[pt2537]

well you defend on the basis that the agreement **SUCKS** and that its is not a true copy, there fore you require production of the original to prove its integrity and that what they have laughingly produced as the agreement is indeed the document that was signed

[banker_rhymes_with]

Hello pt2537!

 

i strongly believe that the application form in post one did not have the prescribed terms in it and as a result they have taken a magazine or something like it and copied it to make it look like it is part of the same document

 

It does look like that, I've had a good look at enlargements, and did wonder about the bleeding through of the black bands etc...on one but not the other.

 

Is this not starting to look like banking Fraud in some way?

 

Or will they try to hide behind the "True Copy" Get-Out-Of-Jail Free Card?

 

Cheers,

BRW

[pt2537]

Hi BRW

 

well i don't think they can hide behind anything TBH, its a load of ...... so there is nowt that they can say, only if they produce the original can they really say that it is

 

 

id possibly even go so far as to directly question the validity of the document in the defence and further more quote that you reserve the right to call a document specialist to give evidence should they not be able to provide the original, you may want ot do so, or you may just want to call their bluff but i wouldnt let them get away with this that for sure

[banker_rhymes_with]

Hello pt2537!

 

Agreed. The shocking thing being that if CAG didn't exist, how far would these bankers have got with this unchallenged?

 

If star_scream had been operating in isolation, fighting against the might of the Dark Side at MBNA Towers, they could've been on a Roll all the way to a CCJ or worse.

 

This just shows what we are really up against, especially with the MBNA.

 

Cheers,

BRW

[goorooji]

Fantastic reading...

 

Paul I think we should call you Sherlock, or maybe just, Pure Genious!!!

 

Well done once again for your brilliance...

 

I noticed that there was a mention of point 6 in this post regarding the defence you did for me?

 

Does this have to be corrected? or is it just a reference?

 

Appretiate your time and effort...

 

Regards. G

[banker_rhymes_with]

Hello All!

 

Just had a good look at the Agreement in Photoshop on one of our Workstations.

 

I flipped the Back Page over, and then made it into a Negative so I could try and read the Bleed-Through.

 

It looks like the Bleed-Through is the same as Page One, i.e. I can read Mother's Maiden Name and Time with Bank etc, and everything Lines up and matches the Front. Many things I can see on the Front are there on the Back Bleed-Through. It all aligns perfectly.

 

How-Ever...and there is a BIG How-Ever...

 

The Prescribed Terms over on the RH Side do not align with anything!

 

They are out of line with both the Back and the Bleed-Through from the Front.

 

I could see it visually in terms of the relationship with the Text and Block Elements on the Back Page but, measuring on Screen confirmed it. The Block of alleged Prescribed Terms is leaning over like the Tower of Pisa and not far off the same angle either!

 

The Block of alleged Prescribed Terms have a much wider Gap at the bottom between them and other Text on the same "Rear" Page than at the Top. A bit like a Dunces Cone Hat, or an upside down Ice Cream Cone.

 

However, the Bleed-Through when viewed as a Negative, shows that the Block of alleged Prescribed Terms is also out of line with the Front Page as well. By the same (albeit reversed) angle, which is what you would expect if Back and Bleed-Through Front are otherwise aligned. If it's out of line with one, it will be out of line with the other...and it is.

 

Those crafty fellows at MBNA Towers appear to have snipped off some Terms from somewhere else, and have slapped them onto the Rear Page without being very careful. Plonk...yep...that'll do for Farm Work.

 

The Bleed-Through will need some thought, just to try and work out how they came up with a Front Page that has no Bleed-Though and a Back Page that does appear to show Bleed-Through from the correct Front Page, i.e. it seems to match the "White as a Sheet" Front Page example with no Bleed-Through from Back showing on the Front.

 

Either way, the Back Page they have provided is highly suspect, as the alleged Prescribed Terms seem to have no relationship to either the Back or the well aligned Bleed-Through showing the correct Front.

 

To get the Bleed-Through to appear on the Back like this, I think they must have at least a Copy of the Original Back. But then added the alleged Prescribed Terms to that Copy in a very sloppy way.

 

They may have the Original Document, but I doubt it will have those same Prescribed Terms!

 

Did they add them because they were not there, or did they add them because what is there, has one or two Prescribed Terms missing?

 

Hope this helps.

 

Cheers,

BRW

[star_scream]

Don't forget though, this was not sent as a reply to a s78 letter. \that was sent 10/3/08 and no CCA has yet been sent

[banker_rhymes_with]

Hello SS!

 

Yes, be interesting to see what they send in response to a s77-79 request...I wonder if they will match!

 

One other thing we noted, the alleged Prescribed Terms that are so out of Line with both Front and Back, show Bleed-Through as well.

 

This suggests that they were on Clear Film, i.e. rather than a chunk of White Paper they stuck on Top. It would have to have been either a chunk of Black Text on Clear Film...

 

...or...this was done using something like Photoshop, where they plonked on the Text with a clear background. Forgetting to align the underlying Document to vertical first.

 

The further overall mis-alignment of all, is probably just when you scanned the Pages. Just not in your Scanner quite straight, that's all.

 

Good luck with it all, seems like you are building up some good ammunition at the moment.

 

Cheers,

BRW

[banker_rhymes_with]

Hello SS!

 

Yes, be interesting to see what they send in response to a s77-79 request...I wonder if they will match!

 

...and I wonder if this is why they seem a little reluctant to send you another Agreement!

 

 

Cheers,

Keith