CCA with Amex/MBNA- next steps?

[buckhunter]

Sent letters to Amex and MBNA asking for CCA as per templates. No responses were received by the 12 days +2 limit, so I sent the follow up letter putting the accounts into dispute.

 

Still no reply from MBNA. Next steps??

 

Amex sent me a late reply providing a copy of the signed original application form dated June 2003. Also, they sent me ' a copy of the oldest terms and conditions that we hold for your account. The original terms and conditions are no longer maintained on our system, but the set provided is substantively the same as the original and should be suitable for your present purposes' ( This was a photocopied set with the date Dec 2003 printed on the top)

 

Also they sent me the current Tand Cs.

 

Interestingly, they then say that they have been advised that the agreement could only be unenforceable if it a) were not signed by me b) it didi not contain the prescribed terms set out in SChed 6 CCA 1974. Which they by implication feel they have done.

 

How am I doing here? Is the fact that I have only signed an application and the terms are no longer available and indeed seperate in my favour?

 

What do I do now? Thanks.

[citizenB]

You say they have sent you terms and conditions from 2003. When was the account started ?

[fedup74]

Can you post up what they sent you? As far as I am aware an application form is unenforceable as the prescribed terms should be present. Did the terms and conditions mention late payment/overlimit charges at £12 as they should read £25 + -they have only changed to £12 over the last couple of years due to the OFT. If you can post it up h:)ere,taking out all your info, people can advise much better

[buckhunter]

June 2003 was when I started and signed the application form. The T and Cs they sent were dated Dec 2003 which was the earliest they said they had available.

[fedup74]

What are the default charges on the terms and conditions that they sent?

[citizenB]

June 2003 was when I started and signed the application form. The T and Cs they sent were dated Dec 2003 which was the earliest they said they had available.

 

 

Hmmm, well it's for sure the t&cs couldnt have been in force at the time of your signing then :grin:

 

As fedup has suggested, if you can scan in your agreement/application form then perhaps people can advise you further.

[buckhunter]

T and Cs are 11 A4 pages long ! But they do refer to a £20 charge.I guess my point is that they are not embodied or even appropriate because they clearly are issued 6 months after I started. Will try to post copy of application I signed.

[citizenB]

T and Cs are 11 A4 pages long ! But they do refer to a £20 charge.I guess my point is that they are not embodied or even appropriate because they clearly are issued 6 months after I started. Will try to post copy of application I signed.

 

Umm, we are not suggesting you scan in the t&cs:D It is the application/agreement page we are looking to see.

 

If the t&cs are all they sent then that is not acceptable.

[buckhunter]

File attached

[buckhunter]

Don't know if this is too small to see the detail, but 2 key points under the CREDIT AGREEMENT REGULATED etc are :

 

' by signing below I confirm that I have read, understood and agreed to all the terms and conditions that form part of this agreement'

 

'I understand that the terms and conditions form part of this agreement'

 

How am I looking now? WHat are my next steps? Thanks.

[citizenB]

Hi buckhunter. It is a little small, however I dont see any prescribed terms. Have a read of the following. If any or all of the following is missing, then it looks as though it might not be a compliant agreement.

 

Supplied by 42 man on another thread.

 

 

CCA RULES FOR PRESCRIBED TERMS

 

CONSUMER CREDIT ACT

 

8.2 What if prescribed terms are missing or incorrect?

 

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.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date

[buckhunter]

No prescribed terms in the application at all as per your advice. I guess Amex would argue they are in the separate T and Cs document- which they don't have a copy of that fits with when I signed up.

[buckhunter]

Another attempt to scan in the document a bit bigger.

[citizenB]

that is still a bit small buckhunter, sorry.

[citizenB]

I have seen a lot of posts about MBNA and CCAs, but has anyone ever 'won' against them or had their debt successfully cancelled etc.?

 

Your question from another thread....

 

If you look in the "legal issues" forum, and the subforum legal successes you will be able to search for what you are looking for.

 

This is a recent win against MBNA/abbey

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/145452-stayingcalm-abbey-no-cca.html

[lexis200]

No prescribed terms in the application at all as per your advice. I guess Amex would argue they are in the separate T and Cs document- which they don't have a copy of that fits with when I signed up.

 

Hi:)

 

The prescribed terms have to be on the document you signed. There's some discussion as to whether they can be on the back of the page rather than on the one with your signature (general consensus seems to be yes, as long as the pages are linked in some way, ie. ref. numbers etc), but the one biggie is the prescribed terms do have to be on there somewhere. Having a separate sheet of terms, albeit only six months after the account opened, doesn't cut it.

 

Have you tried using photobucket to upload your scans? You would be able to do larger piccies if you sign up with them (it's free).