Re: Distressing phone call from MBNA

[car2403]

I have got your email, sunflower, but for some reason it was quarantined as spam so I've only just noticed it.

 

I should get around to responding soon - likely tomorrow.

 

[decker]

Hi

Complained to IA but not that helpful, MBNA are a law to themselves with Restons their solicitors. Unfortunately for them I did Law at Uni, so have them in my sights and will be defending the CCJ. Dont be afraid of a CCJ it screws up your credit rating but mine is so poor having had others default me that I cannot even open a current account for the next 6 years.

It is my reasoning that the court will take a very dim view of the CCJ and agree payments in line with my DMP. They only deafulted me because I would not play ball and pay an extra £20 a month to meet there 0.8 criteria. Looking forward to court years since my law degree, I am going to have fun.

I was playing ball they are not so all guns blasting challenging CA, IA the whole lot MBNA welcome to your worst nightmare.

[decker]

Hi decker! Yes i have been having a nightmare with MBNA and their bully boys RMA with their haressing phone calls,Still i have only just posted thr haresment letter so just hope they take notice of it,Have you complained about their phone calls?At moment when ever they ring i just pick up the receiver and dont say anything and often they dont either! LOL and i now wait for them to put phone down.My boss and me on the occasions we do speak tothem say that i dont take phone calls and all communication to be in writing!but they dont take any notice! Now they have sent me cca which is vey bitty and no proof that they are all connected to original signed agreement!All the ts and cs on seperate pieces of paper or alleged to be overleaf so no,proof to me they are connected!So even when you are in DMP plan they give you hassle,Their interest rates are horrendous and make even the other credit cards look reasonable!

 

 

Record all telephone conversations and send a letter stating that all correspondence should be by letter to you or your representative.

[sunflower99]

Hi Car! Thanks again for your help and advice and glad you dont mind me messaging you about this problems I appreciate that,Yes some of my CAG communication from members also got put in my spam box.It was lucky i noticed them before i deleted them, It is strange as i get most CAG communications to normal e mail but a couple of friend requests ended up in spam folder.Thanks once again:)

[sunflower99]

Hi decker! Good on you!i wish you all the luck! Yes i am now beggining to realise what a nightmare these banks are!They get heavy with you after only one missed payment and try to make your life a misery i have had lovely postcards from their collecters RMA saying they are going to call! i expect you have had some too!I do want to pay something towards my debts but only what i can reasonably afford and not be blackmailed into paying what i can not afford,and i object to the way they bully and intimidate people,I only looked into this cca business because of the way they are trying to bully humiliate and intimidate me and i realise know that DCAs dont want to treat people fairly and that they play their part in these bad debts by their iresponsible lending to desperate people without really checking that they will be able to manage the debt! I know me and my hubby shouldent have used these credit cards but life was so bleak and we both had very little income comeing in so we were tempted to use it but the banks should not have tempted people on low income like us in first place,My husband unable to work as he had a heart attack a five years ago and is now on incapacity benefit and i am not on a brilliant wage as i work in a shop.i will like you soon have to seek some advice about a DMP, and think that soliciter who runs a free clinic might be a good place to start as he was recommended by someone at work who said he gave her a lot of advice about her divorce and problems and even though it was free the soliciters there were very informative and helpful,

[decker]

Hi decker! Good on you!i wish you all the luck! Yes i am now beggining to realise what a nightmare these banks are!They get heavy with you after only one missed payment and try to make your life a misery i have had lovely postcards from their collecters RMA saying they are going to call! i expect you have had some too!I do want to pay something towards my debts but only what i can reasonably afford and not be blackmailed into paying what i can not afford,and i object to the way they bully and intimidate people,I only looked into this cca business because of the way they are trying to bully humiliate and intimidate me and i realise know that DCAs dont want to treat people fairly and that they play their part in these bad debts by their iresponsible lending to desperate people without really checking that they will be able to manage the debt! I know me and my hubby shouldent have used these credit cards but life was so bleak and we both had very little income comeing in so we were tempted to use it but the banks should not have tempted people on low income like us in first place,My husband unable to work as he had a heart attack a five years ago and is now on incapacity benefit and i am not on a brilliant wage as i work in a shop.i will like you soon have to seek some advice about a DMP, and think that soliciter who runs a free clinic might be a good place to start as he was recommended by someone at work who said he gave her a lot of advice about her divorce and problems and even though it was free the soliciters there were very informative and helpful,

 

Hi

Sound like you would get legal aid for anything major but unless you have a house and need to protect that I would go for bankruptcy. It is cheaper and less hassle in the long run but try PayPlan or CCCS first and sooner rather than latter CCCS can do applications on line without speaking to an adviser so you can play with the figures first.

[johndeevoy]

Theres nowhere that I can see that has been signed and dated by the creditor. It hasn't been properly executed if the creditor has not signed and dated the agreement as set out on 1983 Regulations s6.

 

Other than that, if the 2nd page is actually on the back of the original document (you won't find this out until it goes to Court) then it can be enforced as it contains the prescribed terms and you have signed it.

 

I have commented on these forums in a number of threads in relation to agreements that have not been signed and dated by the creditor. I believe this is your strongest argument and may well be your only argument if they can produce an original agreement bearing your signature with all prescribed terms on the back.

 

Its common for application forms to double as the actual agreement. Trying to argue that this is an application form and not an agreement will get you nowhere as its clearly marked as "an agreement under the CCA1974".

[sunflower99]

Hi Johndeevoy Thanks for you advice and looking at my CCA but i thought it did have some sort of signature from crediter,On the first signed bit there is some sort of siganature scribbled over some terms and a date 2nd August 02 stamped on it,i assumed that was a crediters signature?

[johndeevoy]

Ok, I've noticed the signature and date. That will probably hold up in Court and i wouldn't like to have this as my only argument.

 

Im doing some other research atm bt I'll post back here if I can come up with something. I'd advise doing a S.A.R. letter (from the template section). There are certain pieces of the legislation which dictate that they must send you certain notices AFTER the making of the agreement. You want to have copies of all correspondence that they had sent you so as to see if there are any angles.

[sunflower99]

Hi johndeevoy! Thanks for looking into my MBNA CCA for me.I am grareful for your help.

[car2403]

Other than that, if the 2nd page is actually on the back of the original document (you won't find this out until it goes to Court) then it can be enforced as it contains the prescribed terms and you have signed it.

 

I have commented on these forums in a number of threads in relation to agreements that have not been signed and dated by the creditor. I believe this is your strongest argument and may well be your only argument if they can produce an original agreement bearing your signature with all prescribed terms on the back.

 

There's nothing wrong in asking the question - is this a corrected executed credit agreement that complies with the Act and all the regulations made under it? Of course they are going to say yes, but then you have to decide how to proceed. Personally, I don't think those terms are attached to that signature document, in which case the agreement is improperly executed and totally unenforceable.

 

As for the creditors signature, remember that the act requires a signature from the creditor, but the law recognises a different definition to "signature" as you and I would understand it. To the layman, a signature is a written "scrawl" showing someone's name. In law, a signature is an undertaking to bargain - in other words, the fact this has logo's and the creditors details on it, along with the fact that they did advance under the agreement and (to a lesser extent) the fact you've made payments, would probably stand up in Court as being signed by the creditor, in all truth. Also, a missing creditor signature (if the court decides it is missing) wouldn't prevent an enforcement order, so this is one to steer well clear of in your argument, IMHO.

 

The best form of attack is to challenge the construction of the agreement, not the fact the creditor hasn't signed it, then...

[sunflower99]

Hi car! Thanks for your advice and input about this cca.so it wiil do no harm to send that letter to MBNA ,I dont know it this is relevant or not but i think the small little serial number which is so small it is difficult see is different on the signed part of the page from the one on back i think may be different.but i am probably clutching at straws here and probably not relevant!Thanks again for helping me with this CCA,I am very grateful

Edited October 1, 2008 by sunflower99

[johndeevoy]

the fact this has logo's and the creditors details on it, along with the fact that they did advance under the agreement and (to a lesser extent) the fact you've made payments, would probably stand up in Court as being signed by the creditor, in all truth. Also, a missing creditor signature (if the court decides it is missing) wouldn't prevent an enforcement order

 

Car, I have to say I disagree. The CCA1974 differentiates between agreements that become executed upon the signing by the debtor (these are agreements that already carry the signature of the creditor - preapproved applications in other words) and agreements that are unexecuted at the time of signing by the debtor and become executed only upon the signing and dating by the creditor.

 

Absense of execution (signature and date by the creditor) is not a trifle. Theres absolutely no way the logo serves as a signature in respect of agreements under the CCA1974. If this was the case, all agreements (and many simple application forms) would become binding executed agreements upon signature by the debtor, which is not the case.

 

Do you have any case-law in this area?

 

I don't want to hijack this thread to discuss this car, please have a look at this thread http://www.consumeractiongroup.co.uk/forum/general/114724-cca-not-signed-creditor.html

Edited September 30, 2008 by johndeevoy

[car2403]

Car, I have to say I disagree. The CCA1974 differentiates between agreements that become executed upon the signing by the debtor (these are agreements that already carry the signature of the creditor - preapproved applications in other words) and agreements that are unexecuted at the time of signing by the debtor and become executed only upon the signing and dating by the creditor.

 

Absense of execution (signature and date by the creditor) is not a trifle. Theres absolutely no way the logo serves as a signature in respect of agreements under the CCA1974. If this was the case, all agreements (and many simple application forms) would become binding executed agreements upon signature by the debtor, which is not the case.

 

Do you have any case-law in this area?

 

I don't want to hijack this thread to discuss this car, please have a look at this thread http://www.consumeractiongroup.co.uk/forum/general/114724-cca-not-signed-creditor.html

 

It's not a hijack, as it's relevant to the OP's thread.

 

See this thread, post #86 - Peter Bard is our resident CCA expert; (there is also other expert opinion to support this on here)

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default-5.html#post1215608

 

Hi

Section 127 will not preclude the court from enforcing the agreement if the only breach is that the creditors signature is missing.

As for the lack of signature on the agreement meaning that it was not executed and therefore void this is a view many people have and one i used to subscribe to, i have had to reluctantly change my mind about this and now am of the opinion that this would be of no more of a detriment to efoceing a previously functioning account than unenforceablity due to a missing or incorrect required term.

As i have said in the past if anyone can come up with case law or precident to challenge this i will be more than happy to change my mind but in my experiance there isn't any.

 

Bet regards

Peter

 

Also check this out, where the Court very nearly did deal with this issue finally, but fell at the final hurdle in setting a decent precedent; (post #247)

 

http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability-13.html#post1307327

Edited September 30, 2008 by car2403

[johndeevoy]

Thanks for the links car. I don't know how to multiquote on here so I apologise for that but from your post above :

 

"Section 127 will not preclude the court from enforcing the agreement if the only breach is that the creditors signature is missing" I agree. If you look at the thread I posted above, I do not argue that lack of a creditors signature (and lack of date of execution) makes an agreement unenforceable. Rather, it means that the agreement was never executed which IMO is different from an improperly executed agreement due to errors or omissions with form and content.

 

The thread I posted above gives further details of this argument.

 

I note that Peter says "am of the opinion that this would be of no more of a detriment to enforceing a previously functioning account than unenforceablity due to a missing or incorrect required term".

 

If the creditor fails to sign and date the agreement this means it remains unexecuted. Yes, the creditor can apply for enforcement, but the fact that the agreement was not executed does not compare to an application for enforcement of an otherwise executed agreement with minor errors in form or content.

 

Errors in form or content are trifles compared to lack of execution by way of signature and date. Im interested in the reasons why Peter changed his opinion without any case-law?

[johndeevoy]

This was the only interesting point of the case from your link:

 

"the contract did not become an executed agreement in accordance with the requirements of Section 61 of the Act until it had been signed by both the debtor and by the creditor. It was signed by the debtor on 17th March 1992 and by the creditor on 24th March 1992, and thus did not become an executed agreement within the meaning of the Act until the latter date"

 

Agreements that have not been executed due to failure by the creditor to sign and date the agreement are more in the debtors favour than a properly executed agreement that has some other minor omission.

 

Just to confirm, my main angle is that it is unjust for the Court to order that an agreement which was never executed should be enforced retrospectively and the creditor allowed to fully rely on terms and conditions that were never legally in place. I would argue that the sum of money lent by the creditor should be repaid BUT NO MORE and that the Court should not enforce any interest or charges as per the unexecuted terms and conditions. Why should the creditor be allowed to profit when they have not complied with the legislation, in such an important area as the actual execution of an agreement? This would mean that any interest and charges paid by the debtor erroneously during the life of the unexecuted agreement will be offset against the sum actually lent by the creditor. In effect, neither party will have profited or lost from the situation which in my opinion is the most just outcome.

 

This is a far stronger angle than disputing the form or content of an otherwise properly executed agreement (unless one is arguing for unenforceability under s127 of course).

[car2403]

This was the only interesting point of the case from your link:

 

"the contract did not become an executed agreement in accordance with the requirements of Section 61 of the Act until it had been signed by both the debtor and by the creditor. It was signed by the debtor on 17th March 1992 and by the creditor on 24th March 1992, and thus did not become an executed agreement within the meaning of the Act until the latter date"

 

Agreements that have not been executed due to failure by the creditor to sign and date the agreement are more in the debtors favour than a properly executed agreement that has some other minor omission.

 

Just to confirm, my main angle is that it is unjust for the Court to order that an agreement which was never executed should be enforced retrospectively and the creditor allowed to fully rely on terms and conditions that were never legally in place. I would argue that the sum of money lent by the creditor should be repaid BUT NO MORE and that the Court should not enforce any interest or charges as per the unexecuted terms and conditions. Why should the creditor be allowed to profit when they have not complied with the legislation, in such an important area as the actual execution of an agreement? This would mean that any interest and charges paid by the debtor erroneously during the life of the unexecuted agreement will be offset against the sum actually lent by the creditor. In effect, neither party will have profited or lost from the situation which in my opinion is the most just outcome.

 

This is a far stronger angle than disputing the form or content of an otherwise properly executed agreement (unless one is arguing for unenforceability under s127 of course).

 

There's nothing to stop them signing it before going to Court though, if that was the case.

 

I understand your point, but the Court has been seen to enforce cases of agreements that have been unsigned by the creditor - there is a clear intention to form a legal relationship and consideration has been given in the form of advancing the funds to the debtor. Without going in to the reasons why this is enough to form a binding contract, which is regulated by the CCA, as you'd need to understand the Court's interpretations of each parties behaviour, we may have to disagree on how this applies in practice in that case.

[johndeevoy]

There's nothing to stop them signing it before going to Court though, if that was the case.

 

If they sign and execute the agreement before going into Court you can then simply cancel the agreement within the specified time and all transactions under the agreement are deemed to be void as per s68 and s69 CCA1974

s69(4) "agreements and tranactions cancelled under subsection (1) shall be treated as if it had never been entered into".

 

The Court has absolutely no power to determine otherwise in this scenario.

Clearly, the signature and date of execution of an agreement is an important matter. With all due respect car, you say "Courts have been known to enforce" but cannot provide any case-law. Perhaps the debtors in those cases did not argue their case properly?

[johndeevoy]

there is a clear intention to form a legal relationship and consideration has been given in the form of advancing the funds to the debtor. Without going in to the reasons why this is enough to form a binding contract, which is regulated by the CCA

 

While intention and consideration may be enough to execute/form/make a contract in common law it is not enough under the stricter regulations relating specifically to agreements under the CCA. The CCA legislation dictates what must occur for an agreement to be a "binding contract". Legislation supercedes common law and any Judge that disregards what is set out in the CCA and looks to a common law solution is applying the law incorrectly.

 

Any Judge that simply overlooks the fact that the agreement was never executed is making a poor decision. It would appear that this matter has not yet been tried in any Court of substance (high court or above). Failing to execute an agreement places the creditor outside other important aspects of the legislation, particularly with regards to time limits for cancellation. How can it be just to escape the legislation on such important conditions but still be able to rely on the Courts to enforce the full terms and conditions? What is the point of having any of the other rules or regulations then if the creditor does not, in effect, have to comply in order to benefit under the agreement?

Edited October 1, 2008 by johndeevoy

[car2403]

Johndeevoy, I completely agree with your intrepretation - the issue is that the Courts don't take any of this into account and litigants in person are powerless to enforce their legal rights because of Judicial prejudice.

 

With respect to you, until you've been in front of a Judge that is clearly wrong, but won't admit it, you really don't know how frustrating all this can be for us LIP's.

 

I don't need caselaw to back up my interpretation of what the Courts are doing - you only need to read the threads on this forum to see this going on and I wouldn't expect a member to post their names or case details, etc, for me to rely on them. If you need to see any examples of these, please see my O2 and GE Capital Bank default removal attempt threads, then try telling me I'm wrong. By the way, I'm happy to provide the case numbers to anyone that wants those examples, if you send me a PM.

[johndeevoy]

Thanks car, I can fully appreciate what you are saying and how frustrating it must be. Its up to the debtor to argue the facts and the legal aspects of their claim and to issue an appeal if the Judge has applied the law incorrectly.

 

We (consumers) desperately need some authoritive case-law around the issue of non-execution of the agreement by the creditor. Seems totally unjust that creditors can rely on agreements that are not legally compliant just because "we lent the money and now we want it back PLUS interest and charges" and Judges simply agree under the "right to enforce" rather than properly considering the legal arguments.

 

I'll be posting further in separate threads as my own battle with creditors commences.

[sunflower99]

Hi everyone! Well it looks like MBNA is going to ignore that telephone harrasement letter! i took a call from an mbna dca today out of interest just to see if it was they who were countinuing to harass me by telephone and it was,!They asked me who i was and said they were from MBNA and before going through any security questions they started trying to discuss my account i said i dont take telephone calls and the person said that they were a telephone bank and that i would have talk to them on phone!and that they were going to phone every day until resolved! The joke was they should have got that strongly worded telephone letter by registered mail by now and are going to ignore it!Its my telephone! what a cheek telling me i had to talk to them on it !I just put the phone down on them!and very naughty just taking my word i was the person they wanted to speak to and not going through security questions!

[Fred Bassett]

Hi everyone! Well it looks like MBNA is going to ignore that telephone harrasement letter! i took a call from an mbna dca today out of interest just to see if it was they who were countinuing to harass me by telephone and it was,!They asked me who i was and said they were from MBNA and before going through any security questions they started trying to discuss my account i said i dont take telephone calls and the person said that they were a telephone bank and that i would have talk to them on phone!and that they were going to phone every day until resolved! The joke was they should have got that strongly worded telephone letter by registered mail by now and are going to ignore it!Its my telephone! what a cheek telling me i had to talk to them on it !I just put the phone down on them!and very naughty just taking my word i was the person they wanted to speak to and not going through security questions!

 

Sunflower,

 

They do what they want basically. They've done the same to me so I just tell them to f*** off. They really are getting quite brazen now about how they break the law. Either that or desperate.

 

Regards.

 

Fred

[Fred Bassett]

Hi everyone! Well it looks like MBNA is going to ignore that telephone harrasement letter! i took a call from an mbna dca today out of interest just to see if it was they who were countinuing to harass me by telephone and it was,!They asked me who i was and said they were from MBNA and before going through any security questions they started trying to discuss my account i said i dont take telephone calls and the person said that they were a telephone bank and that i would have talk to them on phone!and that they were going to phone every day until resolved! The joke was they should have got that strongly worded telephone letter by registered mail by now and are going to ignore it!Its my telephone! what a cheek telling me i had to talk to them on it !I just put the phone down on them!and very naughty just taking my word i was the person they wanted to speak to and not going through security questions!

 

Sunflower,

 

They do what they want basically. They've done the same to me so I just tell them to f*** off. They really are getting quite brazen now about how they break the law. Either that or desperate. For a "telephone bank" they do have an impressive array of threatograms. Have you had anything pink yet?

 

Regards.

 

Fred

[bathgatebuyer]

How awful that they persist with this. My last dealing with MBNA was about 2 years ago and it's shocking that they still persist with this.

 

Are the calls direct from MBNA or have they set their numpty collectors, Global Vantage onto you yet?