MBNA/Restons claimform - old A+L Card **WON+COSTS**

[fairbyblue]

Whilst have a rummage thorugh the mountain of paperwork i dug out the CCA that they sent me.

 

Can you all pick holes in it for me?

 

The most obvious thing I can see is that on page 5 just aboe with Jonathan black has ticked his box, it talks of clicking the above link for the rest of terms and conditions. There is NO link. So all the terms are not within the 4 corners of the agreement.

 

So using this little gem from another thread (thanks 42Man) heres some case law.

 

In Wilson and another V Hurstanger 2007

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

[pompeyfaith]

no because due to me adjouning the case due to my dads funeral on same day the time order ran out

[diddydicky]

Whilst have a rummage thorugh the mountain of paperwork i dug out the CCA that they sent me.

 

Can you all pick holes in it for me?

 

The most obvious thing I can see is that on page 5 just aboe with Jonathan black has ticked his box, it talks of clicking the above link for the rest of terms and conditions. There is NO link. So all the terms are not within the 4 corners of the agreement.

 

So using this little gem from another thread (thanks 42Man) heres some case law.

 

In Wilson and another V Hurstanger 2007

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

 

"i dont think that the term "within the signature document" means "on the same page as the signature

 

IMO if the document flows to 4 pages and is clearly demonstrated to be one document by page numbering or by the consecutive flow of the terms then it appears to me that this would be regarded as one document (but a am happy to be corrected)

[fairbyblue]

within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

 

By clicking the link its another document. However there is no link. The the FULL terms arent within the document

[diddydicky]

within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

 

By clicking the link its another document. However there is no link. The the FULL terms arent within the document

 

yes you are right about the FULL terms not being within the document

 

my apologies i was referring to the fact that the PRESCRIBED terms would be within the same (4 page) document

[lexis200]

I think you could possibly state that you would have been unable to see the full terms if there was no link present, so may not have known what terms you were agreeing to, but DD is IMO right that the prescribed terms can be on a different page as long as those pages can be linked together to show they are from the same document.

[diddydicky]

I think you could possibly state that you would have been unable to see the full terms if there was no link present, so may not have known what terms you were agreeing to, but DD is IMO right that the prescribed terms can be on a different page as long as those pages can be linked together to show they are from the same document.

 

although on an application form i am led to believe by some of the site team that the prescribed terms and signature must be on the same page and at present i am trying to get confirmation of this

[fairbyblue]

I think you could possibly state that you would have been unable to see the full terms if there was no link present, so may not have known what terms you were agreeing to, but DD is IMO right that the prescribed terms can be on a different page as long as those pages can be linked together to show they are from the same document.

 

I appreciate that but there isnt a link where they say there should be

[lexis200]

yep, that's what I meant - you could argue the toss on that as they didn't allow you the opportunity of reading all the terms and knowing exactly what you would have signed up to. The prescribed terms though are different and if they are contained in the 4 pages you have, and those pages can be shown to be linked, then currently (although I expect it will change soon enough) the opinion seems to be that that is ok. Not having a link to the full terms is IMHO not ok though.

[fairbyblue]

Whilst have a rummage thorugh the mountain of paperwork i dug out the CCA that they sent me.

 

Can you all pick holes in it for me?

 

The most obvious thing I can see is that on page 5 just aboe with Jonathan black has ticked his box, it talks of clicking the above link for the rest of terms and conditions. There is NO link. So all the terms are not within the 4 corners of the agreement.

 

So using this little gem from another thread (thanks 42Man) heres some case law.

 

In Wilson and another V Hurstanger 2007

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

Bump, any one with anymore views on this 'executed' agreemnt

[Needabreak]

My agreement is virtually the same as yours FB. Without the rest of the terms and conditions for the original agreement, how can MBNA prove that they have the contractual right to alter the terms at a future date? Therefore in your DN it says you have breached clause 8, but you have not got a clause 8 as your conditions only go up to 4.

 

Surly by not supplying the agreement with all of the terms and conditions that relate to it, they are in default under s77/78 and therefore should not be able to enforce the agreement anyway.

 

You could just copy this agreement, insert the judges name instead of yours, include a copy of the generic "Current terms" and ask how he would defend such an agreement.

 

On your SJ application, do Restons call this an application? they did on mine.

 

I really hope you take them to task in court and win.

Needabreak.

[fairbyblue]

My agreement is virtually the same as yours FB. Without the rest of the terms and conditions for the original agreement, how can MBNA prove that they have the contractual right to alter the terms at a future date? Therefore in your DN it says you have breached clause 8, but you have not got a clause 8 as your conditions only go up to 4.

 

Surly by not supplying the agreement with all of the terms and conditions that relate to it, they are in default under s77/78 and therefore should not be able to enforce the agreement anyway.

 

You could just copy this agreement, insert the judges name instead of yours, include a copy of the generic "Current terms" and ask how he would defend such an agreement.

 

On your SJ application, do Restons call this an application? they did on mine.

 

I really hope you take them to task in court and win.

Needabreak.

 

Excellent point. Cheers thats going in my statement:D

[WelshMam2009]

within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

 

By clicking the link its another document. However there is no link. The the FULL terms arent within the document

 

 

"Four Corners" is only relevant for enforcement under s127(3) as I understand it Fairby.

 

What you have been issued with is a copy of an executed agreement which is deemed to have been signed by them by virtue of the tick in the box.

 

I believe that it is permissible to refer to other terms and conditions elsewhere. However, URL's are normally indicate by underlined text and it could be that the link you are looking for is the header entitled "CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974" at the top of the first page.

 

The crux is whether or not all prescribed terms are within the document; it is in the prescribed format and it is signed by both yourself and the bank*.

 

*Notwithstanding electronic signatures

 

Hope this helps...

[fairbyblue]

"Four Corners" is only relevant for enforcement under s127(3) as I understand it Fairby.

 

What you have been issued with is a copy of an executed agreement which is deemed to have been signed by them by virtue of the tick in the box.

 

I believe that it is permissible to refer to other terms and conditions elsewhere. However, URL's are normally indicate by underlined text and it could be that the link you are looking for is the header entitled "CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974" at the top of the first page.

 

The crux is whether or not all prescribed terms are within the document; it is in the prescribed format and it is signed by both yourself and the bank*.

 

*Notwithstanding electronic signatures

 

Hope this helps...

 

Appreaciate that but the wording on page 5 it says the 'top of this page' specifically says terms and conditions link. It is not there.

 

As nedabreak says, where does it say they can alter the T and c's It doent so the t and c's are not complete.

[WelshMam2009]

Appreaciate that but the wording on page 5 it says the 'top of this page' specifically says terms and conditions link. It is not there.

 

As nedabreak says, where does it say they can alter the T and c's It doent so the t and c's are not complete.

 

 

If this was an electronic application then it may have been one continous scroll rather than individual pages. Nonetheless, it's more the fact that it says "Terms and Conditions" link and, as far as I can tell, there is no underlined header stating "Terms and Conditions."

 

I agree that you should be supplied with a copy of the original t&c's, which is something that MBNA have not managed to provide me either. However, can I ask in what way is MBNA varying them going to help your case? Have they issued a DN quoting para 8f ??

 

Hope this doesn't sound obstructive...with 3 MBNA accounts myself, I am on your side!!

 

EDIT: Thinking about it, they may also say that the link was an integral part of the web page and would not have been printed out on the document.

[fairbyblue]

If this was an electronic application then it may have been one continous scroll rather than individual pages. Nonetheless, it's more the fact that it says "Terms and Conditions" link and, as far as I can tell, there is no underlined header stating "Terms and Conditions."

 

I agree that you should be supplied with a copy of the original t&c's, which is something that MBNA have not managed to provide me either. However, can I ask in what way is MBNA varying them going to help your case? Have they issued a DN quoting para 8f ??

 

Hope this doesn't sound obstructive...with 3 MBNA accounts myself, I am on your side!!

 

Yep first DN was para 3 then 2nd DN was para 8.

 

They have supplied when ordered by the court the 'most recent t and c applied to account' but one of my arguments is that nowhere on the original agreement does it say they can vary the t and c's presumably its in sections 4 - 16 for which there is no link and i cannot check.

I could argue that sections 4-16 state that i dont have to pay cos its a saturday and the judge will say prove it.

By that reasoning MBNA cant prove that they could vary it, and i can only refer to whats been produced.

if you see what i mean. I'll put it better that that.

[fairbyblue]

EDIT: Thinking about it, they may also say that the link was an integral part of the web page and would not have been printed out on the document.

 

They could try but it would print out, and looking at where my name and address is at the beginning, that has been typed in after, cos it doesnt fit. It just looks 'recreated'

[Needabreak]

I would have thought, that an online agreement should be stored correctly and securely.

 

It should be secure, so that it can be proved that it has not been altered in any way from the original, and an audit trail of print outs etc.

 

We should be checking section 7 of the Electronic communications Act 2000. This relates to the admissibility of electronic signatures as evidence in legal proceedings.

 

I'm sure there should be certain rules that protect the consumer against the misuse of these online agreements .

 

We should also check the Electronic Signatures Regulations 2002, there may be more info in there re what the creditor has to do re storing this info and reproducing it in an unaltered way.

 

Clearly MBNA have not reproduced this document as per the original, as the terms and link are missing, the pages are not linked, the signature (tick in a box) is not logically associated with the document????

 

A very grey area that needs pulling apart I think.

[diddydicky]

My agreement is virtually the same as yours FB. Without the rest of the terms and conditions for the original agreement, how can MBNA prove that they have the contractual right to alter the terms at a future date? Therefore in your DN it says you have breached clause 8, but you have not got a clause 8 as your conditions only go up to 4.

 

Surly by not supplying the agreement with all of the terms and conditions that relate to it, they are in default under s77/78 and therefore should not be able to enforce the agreement anyway.

 

You could just copy this agreement, insert the judges name instead of yours, include a copy of the generic "Current terms" and ask how he would defend such an agreement.

 

On your SJ application, do Restons call this an application? they did on mine.

 

I really hope you take them to task in court and win.

Needabreak.

 

yes they are in default because s 78 says that they MUST provide any document that is referred to in it (it being the original executed agreement"

[fairbyblue]

ok they have now sent the statment they rely on in court !!!! I have asked Dianne to attend.

Basically it looks as though Restons and MBNA are just confirming what the other is saying. Nice to know that dianne can confimr Restons statemnt as FACT.

They only sent MBNA statemnt but in it referes to other statement that restons had submitted for SJ hearing.

I think its extrememly vague and rushed job.

I trawled back thorugh and found original statment from Restons which again is hogwash and her statemnt from 29th april.

Heres the letter- note that is only witness statment they are relying on-

 

Comments please.

 

 

and this is statement from solicitor for SJ hearing

 

and her statemnt

Edited July 24, 2009 by fairbyblue

[fairbyblue]

just seen in para 5 and 6 of solicotors statement it states that claimant is contractually entitled to vary terms and conditions. Well thats going to be funny in court when i ask them to point to in in the agreement cos it aint there !!!!

Edited July 24, 2009 by fairbyblue
spelling

[bazaar]

OK FB, heres some thought,

Her point 2 in WS Where is the original if she has seen sight of it, surely they will bring it to court as ordered.

 

Boufonts point 5, you require strict proof of sending, not just some screen printed note.

6. If the claimant is contractually allowed to change things, wheres the original signed agreement that allows them to do so?

7. If you can prove the payment you made, this blows the Tu*d out of the water .

[underdog13]

She refers to the latest T&Cs - were the orignal T&Cs sent? These originals form part of the agreement and should have been supplied with the response to your s78 request. If they didn't then surely they haven't complied with your s78 request and therefore are prevented from enforcement?!

[fairbyblue]

OK FB, heres some thought,

Her point 2 in WS Where is the original if she has seen sight of it, surely they will bring it to court as ordered.

 

Boufonts point 5, you require strict proof of sending, not just some screen printed note.

6. If the claimant is contractually allowed to change things, wheres the original signed agreement that allows them to do so?

7. If you can prove the payment you made, this blows the Tu*d out of the water .

 

Exactly, they have been ordered to produce original and they have produced what i have previously posted.

how can boufont confirm MBNA internal case management system?

Nothing at all on 'agreement' stating they can vary t and c.

 

and best of all , why is there loads of deletes on case mangement system on in june 08 after the sending of 1st DN?

[diddydicky]

just seen in para 5 and 6 of solicotors statement it states that claimant is contractually entitled to vary terms and conditions. Well thats going to be funny in court when i ask them to point to in in the agreement cos it aint there !!!!

 

and para 2 contains "heresay" evidence

 

so is para 7

Edited July 24, 2009 by diddydicky