mbna/rma

[everton2005]

bump

[everton2005]

any one

[atwozee]

Try something like this:

 

ACCOUNT IN DISPUTE

 

Account number: xxxxxxxxxxxxxxxxx

 

Dear sir/madam

 

Thank you for your letter dated xx/xx/2008 in response to my request for a true copy of any alleged agreement under Section 78 of the Consumer Credit Act 1974. The contents of which have been noted.

 

Because the deadline of 12 working days has now elapsed I must assume that you have complied with my request, to the best of your ability, and you are unable to offer further documentation. You are also reminded that if you fail to supply a true copy of an agreement when requested under section 78 (1) of the Consumer Credit Act 1974 then section 78 (6) clearly states:

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a)he is not entitled, while the default continues, to enforce the agreement;

 

The true copy of an alleged agreement that you have supplied is in actual fact a copy of an application for a credit card, and this, as I am sure you are aware, does not constitute a properly executed agreement. On this basis I can only assume that an agreement between us does not exist in relation to account xxxxxxxxxxxxxxxxxx. I suggest that you take legal advice on the matter of what does and does not constitute a properly executed agreement under the terms of the Consumer Credit Act 1974.

 

I would also like to bring to your attention that in the following case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

I am sure that you are aware section 127 (3) of the act (which deals with enforcement) specifically precludes the court from making an enforcement order under section 65 (1) if the agreement was improperly executed. It is the sole responsibility of the creditor to ensure that a relevant consumer credit agreement is properly executed, should they fail in this responsibility then they lose any rights they may have had regarding the agreement. This includes any right to demand payment, in part or in full, or to issue a default against the account.

 

As things stand at the moment I do not and will not acknowledge this alleged debt. Furthermore, I dispute the legality of the debt until such a time as you can produce a satisfactory consumer credit agreement.

 

You are reminded that without an agreement containing all of the prescribed terms as is a requirement of section 60 of the Consumer Credit Act 1974 no binding contract exists between us and as such the account must be considered void. I would therefore suggest that a simple solution would be for you to write this debt off, especially in view of the fact that it will remain unenforceable until a properly executed credit agreement is produced.

 

Yours faithfully

Print your name

 

I am also surprised that they haven’t squeezed a set of prescribed terms on the left hand side of your ‘application’ that’s normally something that they do.

[everton2005]

thanks for that mate cheers

[Guest dvdriley]

i dont think the tele staff even know what w emean by enforceable cca,s. When asked by MBNA if I could pay the amount outstanding I said yes, use the card details you have on file!!!

[everton2005]

should i also add to that letter that they have been charging me ppi from day one when the box clearly shows a tick in the no box

[atwozee]

Yes – if you think you’ve been missold the policy – personally though I would put that in a separate letter because it’s a separate issue to the enforceability of the agreement and both issues could drag on and on.

Depends what you are trying to achieve really – do you want to claim the premiums back or offset it against a potentially unenforceable agreement?

[everton2005]

looking for guidance really not sure which way to go to be honest

[atwozee]

Well if you’ve been missold a ppi (or they’ve added it to your account without requesting it) then you are entitled to claim those premiums back – it doesn’t have to be offset against any alleged debt and should be refunded to you by way of cheque or bank transfer – that’s why I say the two things are different.

Send the letter previously posted or something like it (regarding the agreement) and then send another letter to their registered office disputing whether you requested ppi on the account – it doesn’t have to be war and peace – just inform them that you don’t believe that ppi was ever requested on the account and you would like to know why you’ve been paying premiums - I’ve done a similar thing and was told that although I didn’t request it on the application I was sold the policy over the phone – I’ve asked them to provide a transcript of the telephone conversation to prove it. I think they will capitulate and offer a settlement – although I may need to start a court claim to get it.

These things take time but you can achieve your aims if you are prepared to put the effort in.

Keep your thread updated and anything that happens you will get help with – just remember to stay calm and do not let them get under your skin.

[everton2005]

thanks for the advice mate;)

[everton2005]

just had a phone call from these obnoxious goons basically saying the agreement is enforcable after a few heated words told him were to go not to phone me again and in writing only

[everton2005]

another call today writing only and hung up

[everton2005]

heres the latest http://i36.photobucket.com/albums/e38/everton2005/lastscanmbna.jpg

[everton2005]

looking for some advice regarding next step please http://i36.photobucket.com/albums/e38/everton2005/mbnaagain.jpg

[everton2005]

bu

[everton2005]

anyone help

[Kittyxxx121]

If they haven't sent anything different, then write back stating that it is unenforceable. I'd also send a telephone harassment letter.

[everton2005]

any views what to do next

[atwozee]

Try something like this -

Dear Mr. Shaw

Ref: Account number xxxxxxxxxxxxxxx

Thank you for your letter dated xx/xx/xxxx the contents of which have been noted.

In response to your letter, I have to inform you that I am most confused by the comments you have made. Particularly in paragraph 2 where you state:

‘…all of the necessary prescribed terms were included in the credit agreement…’

For avoidance of doubt, the prescribed terms referred to in section 127(3) of the Consumer Credit Act 1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are:

a) A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

b) A term stating the rate of any interest on the credit to be provided under the agreement.

c) 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 -

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

I cannot locate the above prescribed terms on the copy of the application form that you sent in response to my s78 request and I therefore believe that any alleged agreement for the above account is unenforceable. If you disagree then perhaps you would be so kind as to inform me where exactly on the application form these necessary terms are to be found.

I would appreciate your earliest response to this matter.

Yours sincerely,

Print don’t sign.

[everton2005]

thanks pal your a star;)

[everton2005]

here is the latest installment http://i36.photobucket.com/albums/e38/everton2005/mbnaagain-1.jpg

 

 

any advice most welcome

[atwozee]

Well if you’ve ran out of toilet paper you could probably find a use for it.

[everton2005]

lol but seriously what do i do next

[atwozee]

It’s a standard letter that is designed to scare and intimidate you. MBNA haven’t provided you with a legally enforceable agreement so just ignore it.

There’s not a lot else that they can do and there’s not a lot else you can do either TBH. I would give it another week and then give Mr Shaw a nudge regarding the last letter you sent.

I think I had one of these threatograms about 4 months ago – the last thing they sent me was an invalid default notice.

[everton2005]

thanks mate