Signatures required to enforce CCA or not?

[financialdunce]

I recently CCA’d MBNA and although they provided some documentation for my accounts, they have failed to provide the original signed agreements. In their covering letter they wrote:

 

“It may be helpful to explain that we are not required to serve a copy of the credit agreement which includes signatures, as the law expressly permits lenders to omit signatures from copies of all credit agreements.”

 

This appears to be contrary to everything I have read here. Can anyone refer me to the clause or clauses in the CCA that state that for a debt to be enforceable the lender must have signed copies of the agreements? And does anyone have any idea what law MBNA claim “expressly permits lenders to omit signatures from copies of all credit agreements”?

 

Many thanks in advance.

[MrShed]

I know it is the case that they CAN omit signatures. I dont know what the clause is however.

 

I was as surprised as you when I read that.

[huggys boss]

Sections 77/78 in here. Consumer Credit Act 1974

 

Happy reading

[creditcardmug]

Just to be clear, whatever they provide re: a CCA request, if the matter was in court a document containing your signature would have to be produced in order for the court to enforce it.

 

So if they do have such a document there's no reason why they shouldn't supply you a copy, as you would then have confidence that they had an enforceable agreement.

 

The fact that they have not done so says to me that they dont have an enforceable agreement.

[MrShed]

CCM - either that, or like most creditors, are just playing bloody awkward.

 

Chances are if it went to court, they will in fact submit a signed agreement as evidence.

 

They just like to make sure that the defendant isnt in full possession of the facts until it goes to court.

[huggys boss]

 

They just like to make sure that the defendant isnt in full possession of the facts until it goes to court.

 

Makes for an even playing field then, we are not in full possession of the facts and they are not in full possession of their faculties

[creditcardmug]

I dont think MBNA have agreements, they passed mine on to a bottom feeder at least 4 months ago, and havent been able to reply to my CCA request.

[babybear39]

A judge would take a dim view of any financial institution bringing legal action without disclosing a copy of the signed agreement BEFORE it got to court, as this is a complete defence to any court proceedings if they don't have it.

[MrShed]

Correct, but their dim view cannot unfortunately prevent the court from enforcing the letter of the law.

[B3rty]

Does the copy with out signatures contain the prescribed terms...if not then the odds are they wont be able to provide anything to cause you concern should they litigate as your defence would be 127(3)

 

However should they produce a compliant copy minus sigs this could cause a problem

[dpick]

Hi I have started to use the full sar for all information held in my name and address. This has resulted in two creditors admitting they have no signed agreement when they produced blank agreements for CCA requests with the normal we are not required to supply documents with signatures for CCA etc.

 

dpick

[financialdunce]

Does the copy with out signatures contain the prescribed terms...if not then the odds are they wont be able to provide anything to cause you concern should they litigate as your defence would be 127(3)

 

However should they produce a compliant copy minus sigs this could cause a problem

 

 

Perhaps this extra information will help.

 

There are 2 MBNA administered accounts in question; 1 is MBNA and the other is A&L, but administered by MBNA. I applied for both a S.A.R - (Subject Access Request) and a CCA on both accounts.

 

Their covering letter in reply to the SAR said:

“Unfortunately due to archive retrieval issues we have been unable to retrieve a copy of the original application form for account XXX. Alliance & Leicester have been unable to provide this information, please accept my apologies for any inconvenience caused.”

 

Their reply to the CCA request said:

“In accordance with section 78 of the CCA of 1974, I enclose copies of the credit card agreements, including applicable terms and conditions, and statement of accounts. We are sorry we have not been able to send you a photocopy of the originals, but hope that you will find the enclosed copies clear to read and sufficient for your purposes.”

 

None of the documents they’ve sent include any signatures. In act the CCA agreements they sent don’t even contain my name, they are simply a stock agreement with Terms and Conditions: is that what you mean by “prescribed terms” and “compliant copy”? However I have no idea when these agreements date from. I suspect that they are simply MBNA’s current T&Cs, but surely the whole point is that they need to produce the T&Cs in force at the time of the credit card agreement? If that’s true then the T&Cs they sent me should be irrelevant.

 

Their most recent letter, part of which I quoted at the start of this thread, says:

“I can confirm that we have provided you with all the necessary information we need to provide you with in accordance with s.78 of the CCA, and there are no further documents from your letter which we are required to provide you with to confirm that you have entered into and owe money under valid and enforceable credit card agreements.”

 

From all of the above it seems to me they simply don’t have the necessary paperwork. Not only that, but they’ve admitted this in writing, so I think it would be difficult for them to suddenly produce the missing agreements in court.

 

What concerns me most is Mr Shed’s assertion: “I know it is the case that they CAN omit signatures.” CCA s.78 is very clear [thanks for the link] and there would surely have to be exceptional circumstances for a court to over-ride that, otherwise the clause serves no purpose. Anyone know of any instances where a court has over-ridden s.78, and what the circumstances were?

 

Thanks again for everyone’s help.

[creditcardmug]

Hi I have started to use the full S.A.R - (Subject Access Request) for all information held in my name and address. This has resulted in two creditors admitting they have no signed agreement when they produced blank agreements for CCA requests with the normal we are not required to supply documents with signatures for CCA etc.

 

dpick

 

Hi dp can you point me to the sar you use.

 

cheers

 

sorry to hijack

[creditcardmug]

I think you have answered your own question here really, its quite obvious from the replies that they do not have agreements which would be enforceable in court if you put them to strict proof.

 

With a CCA request they have to provide very little, but in court you can insist on the original, with an SAR you can insist on seeing everything they have on you.

 

I have to date never seen an enfocable agreement from MBNA on this site, if thats any help.

[KER]

A judge would take a dim view of any financial institution bringing legal action without disclosing a copy of the signed agreement BEFORE it got to court, as this is a complete defence to any court proceedings if they don't have it.

 

 

Exactly, and it would defeat what is known as the "overriding objective" which is, as much as possible, to settle things out of court!!

[financialdunce]

I think you have answered your own question here really, its quite obvious from the replies that they do not have agreements which would be enforceable in court if you put them to strict proof.

 

With a CCA request they have to provide very little, but in court you can insist on the original, with an S.A.R - (Subject Access Request) you can insist on seeing everything they have on you.

 

I have to date never seen an enfocable agreement from MBNA on this site, if thats any help.

 

I agree with all of that: it seems to me that MBNA have screwed themselves by not bothering to take care of the paperwork. I’m just posting here to check my facts so I can handle this properly: better to get tripped up here than in court if it goes that far.

 

So here’s another question. If I tell MBNA to get lost and they go to court, what’s the absolute worst that can happen?

[MrShed]

Absolute worst - they sue, win and get court costs(which wouldnt be substantial). What is the value of the alleged debt?

[creditcardmug]

Absolute worst - they sue, win and get court costs(which wouldnt be substantial). What is the value of the alleged debt?

 

Agree with that, if its less than 5k.

 

But were only talking so far of the alleged agreement, theres plenty of other angles here, for instance a valid Default Notice, which they all seem to get wrong, so the chances of a successful claim arent good.

[financialdunce]

Absolute worst - they sue, win and get court costs(which wouldnt be substantial). What is the value of the alleged debt?

 

MBNA is 14k, A&L is 3k.

 

Since MBNA administer both, and have admitted they don't have paperwork for either, it's not clear whether there would be separate court cases. But since these are technically separate accounts I assume any court actions would also be separate.

[MrShed]

In that case, I take back the "wouldnt be substantial" part - as CCM rightly says, this wouldnt apply over 5k, as it wouldnt be dealt with via small claims track.

[blipvert]

subscribing

[creditcardmug]

Hmmm... Ive known them sell accounts to such as cabot, who lump them together, which makes it more complicated to defend, 14-17k would be multitrack which would carry quite large costs for the losing side.

 

But if theres no agreements, its defendable, just thought i should warn you of the possibilities, not saying such will happen.

[MrShed]

I agree - it is a long way til that worst case. But, that worst case is always POSSIBLE, if improbable.

[financialdunce]

I agree - it is a long way til that worst case. But, that worst case is always POSSIBLE, if improbable.

 

Oh dear. In that case, given the figure is over 5k, what's the worst case in that situation? And what's "multitrack"?

 

Thanks again.

[pt2537]

Multi track has massive costs implications,

 

however, if you have a 14k debt that would fall within the fast track which still has cost implications if you lose but not as serious