kennyruss V MBNA

[kennyruss]

Is the agreement signed by them?

 

nope....

 

we have discussed this before:) lol

 

it may be grounds for offering them a settlement??

 

kenny

[atwozee]

Not sure – at the moment its unexecuted – therefore its improperly executed – therefore only enforceable by order of a court.

My argument is (and not everyone agrees) once it goes to court the agreement is effectively terminated. The judge can’t then ask the creditor to sign and execute the agreement as there is no agreement to execute (because its been terminated)

So the agreement will always be unenforceable via s127 (4) which is slightly different to s127 (3)

Suggest you read s127 (4) and ask yourself if the creditor complied with (a) and (b) assuming they had taken you to court.

[kennyruss]

Not sure – at the moment its unexecuted – therefore its improperly executed – therefore only enforceable by order of a court.

 

My argument is (and not everyone agrees) once it goes to court the agreement is effectively terminated. The judge can’t then ask the creditor to sign and execute the agreement as there is no agreement to execute (because its been terminated)

 

So the agreement will always be unenforceable via s127 (4) which is slightly different to s127 (3)

 

Suggest you read s127 (4) and ask yourself if the creditor complied with (a) and (b) assuming they had taken you to court.

 

ok S127 (3) states

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order

 

s127 (4) states

 

S127(4) provides that the court shall not make an enforcement order in the case of a cancellable agreement if:

• a provision of s62 or s63 (duties to supply copies of the agreement) was not complied with, and the creditor did not give a copy of the executed agreement (and any document referred to in it) to the debtor before the commencement of the proceedings; or

• s64(1) (duty to give cancellation notice) was not complied with.

 

are these the two correct quotes, before I think about what I have in front of me??

 

kenny

[atwozee]

s127 (4) states

 

S127(4) provides that the court shall not make an enforcement order in the case of a cancellable agreement if:

• a provision of s62 or s63 (duties to supply copies of the agreement) was not complied with, and the creditor did not give a copy of the executed agreement (and any document referred to in it) to the debtor before the commencement of the proceedings; or

• s64(1) (duty to give cancellation notice) was not complied with.

 

are these the two correct quotes, before I think about what I have in front of me??

 

kenny

 

Sure are mate – and I’ve underlined the important bits.

 

Sometimes it has to turn into a waiting game rather than a quick fix. If you know that the agreement hasn’t been executed then there’s no getting away from the above is there.

[kennyruss]

Sure are mate – and I’ve underlined the important bits.

 

Sometimes it has to turn into a waiting game rather than a quick fix. If you know that the agreement hasn’t been executed then there’s no getting away from the above is there.

 

going to read up on s62, 63 and 64 now:)

 

cheers

 

will be back on the thread soon

[kennyruss]

Sure are mate – and I’ve underlined the important bits.

 

Sometimes it has to turn into a waiting game rather than a quick fix. If you know that the agreement hasn’t been executed then there’s no getting away from the above is there.

 

going to read up on s62, 63 and 64 now:)

 

cheers

 

will be back on the thread soon

[atwozee]

Don't forget - executed means signed by both the debtor (You) and the creditor (them)

[kennyruss]

Don't forget - executed means signed by both the debtor (You) and the creditor (them)

 

the only one I have came across yet that has both sigs is EGG

 

ok..

 

executed - not signed by creditor...agreed

also I noticed that on the side I have signed it asks me to read term 11 of the T&C's - they have only provided me with current T&C's

 

I dont really want to point these things out to MBNA...what should I do next... just wait ??

 

kenny

[atwozee]

I would, but you might want to offer a f&F - if they dont take it you are where you are at now - nothing changes.

[kennyruss]

ok just getting around to this letter, any comments anyone

 

I do not acknowledge any debt to MBNA

 

Firstly I would like to thank you for your correspondence of 20th November.

In response to this it is my view that the documentation supplied on two separate occasions by MBNA is improperly executed.

It is also my view that the debt will be un-enforceable in a court of Law and therefore I acknowledge no debt to MBNA.

As you will know I have been forced to cancel Novembers and future direct direct debit payment due to my current situation. This situation is unlikely to change in the long term.

However, a family member has offered me a loan of £2000 and I want to offer this as an ex−gratia payment in full and final settlement of the account. This offer is made on the clear understanding that, if accepted, neither you nor any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that I will be released for any liability.

 

I also request that, if accepted, you will make an entry on a credit reference agency file relating to the above account as "satisfied" in full.

 

Payment can be made within 2 weeks of receiving your written agreement of this offer and method of payment. If this payment is not accepted, I will be unable to make any payment other than a token payment of £1 per month.

I urge you to accept my offer whilst the £2000 is available to me as I have other creditors to approach

I look forward to your response.

[kennyruss]

ok, quick update on my sitiation....

 

offered 20% F&F on 25th November - no response

got my SAR in - well statements only and £10 PO returned - looking for a killer SAR letter as obviously my request was ignored

also got a letter (shown below) from RMA - unsure whether DCA but looks like they have upped the ante

 

what is my next move???? -

 

thanks kenny