Muffintop v mbna

[Muffintop]

Sunflower, dont know bout you but this issue with mbna is consuming most of my life at the moment,, not really had much from barclay card at the moment... thanks for trying to see the differences in our agreements, I will try to print yours off and put them side by side. The only thing Im sticking to is its an application form microfiche and has wrong heading so I want to see the original, preferably before the court case, if they wont show it until the court case then I think Im going to take this risk as it wont go down too well that they have wasted courts time when they could have disclosed it a lot earlier.

[Muffintop]

Caggers,

Got a real worry with my MBNA cca. Yes I have been sent a mish mash of paperwork, t and cs separate from a tear off slip as above which is likely to be microfiche and not got correct heading but has got my signature

 

I had it blown up and it says

Please issue an MBNA credit card to me and if applicable to the person I have named as cardholder. I HAVE RECEIVED A COPY OF AND AGREE TO BE BOUND BY THE MBNA CREDIT CARD TERMS AND CONDITIONS AND I UNDERSTAND THAT I AM RESPONSIBLE FOR PAYING ANY BALANCE DUE ON MY CREDIT CARD ACCOUNT.

 

This is what concerns me as they have possibly got an 'out' to having all prescribed terms and conditions within 4 corners of the doc and its got my signature on it.

 

I need to know if this has any weight are they allowed to put this and does this mean they dont have to have it all within 4 corners of a doc?

[sunflower99]

Hi Muffintop!

I was glad to have been some help!I am glad you managed to make sense of my rambling post!LOL.I know what you mean about these worries about MBNA and in my case Capital One do consuming our life! All the time i am thinking and worrying about our battles with them.It does make me feel very tired and feel i have no time for anything else which is a bit sad.All my life seems to be filled with worry about CCAS and my battles with credit cards at moment.so i know exactly how you feel!Ive just been posting on my Crapital one thread ive got quite a complicated CCA issue on that one which is even more complicated than my MBNA one believe it or not ! ive just put up a very long rambling post about it which turned into a mini book and probably confused everyone to death on it!I was wondering if you would mind looking at it and giving me your thoughts on it? The Thread is called i rreceived a signed capital one CapitalOne Agreement!

[creditcardmug]

Caggers,

Got a real worry with my MBNA cca. Yes I have been sent a mish mash of paperwork, t and cs separate from a tear off slip as above which is likely to be microfiche and not got correct heading but has got my signature

 

I had it blown up and it says

Please issue an MBNA credit card to me and if applicable to the person I have named as cardholder. I HAVE RECEIVED A COPY OF AND AGREE TO BE BOUND BY THE MBNA CREDIT CARD TERMS AND CONDITIONS AND I UNDERSTAND THAT I AM RESPONSIBLE FOR PAYING ANY BALANCE DUE ON MY CREDIT CARD ACCOUNT.

 

This is what concerns me as they have possibly got an 'out' to having all prescribed terms and conditions within 4 corners of the doc and its got my signature on it.

 

I need to know if this has any weight are they allowed to put this and does this mean they dont have to have it all within 4 corners of a doc?

 

No, the prescribed terms must be within the 4 corners of the page you signed.

Sometimes they can get away with them being overleaf, BUT it would have to say that on the page you signed.

[Ragtaggeorge]

They do not need the terms and conditions per se to make and enforceable agreement. Anything with the prescribed requirements, your signature and date can be enforced by a court even if it is not a properly executed agreement or even an application form. Follow the CAG advice and read this thread fully. Nothing to worry about. http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html

[Muffintop]

Creditcardmug, thanks that is a huge relief been trawling consumer credit act 74 all day my brain just gone to mush with all the sections.

 

It looked as though I had signed the statement and I was toast.

[Muffintop]

They do not need the terms and conditions per se to make and enforceable agreement. Anything with the prescribed requirements, your signature and date can be enforced by a court even if it is not a properly executed agreement or even an application form. Follow the CAG advice and read this thread fully. Nothing to worry about. http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html

Oh god now Im worried again. are you saying that the court can enforce whatever they have sent???? will read link again

 

Credit card mug your comments pse on ragtaggeorges post

[creditcardmug]

They do not need the terms and conditions per se to make and enforceable agreement. Anything with the prescribed requirements, your signature and date can be enforced by a court even if it is not a properly executed agreement or even an application form. Follow the CAG advice and read this thread fully. Nothing to worry about. http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html

 

I suggest you do some further reading my friend, as in,

 

 

. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

16. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

17. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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

 

18. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

19. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 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 (with the benefit of legal advice if necessary) 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. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

20. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

21. Notwithstanding point 20, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

22. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

23. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

24. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) over the following paragraphs

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398

25. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

26. In addition to the requirements of schedule 6 of SI1983/1553 these terms must be within the agreement itself, not in a separate document. I refer to the judgement of Tuckey LJ from Wilson and Hurstanger in point 19 above, from reading the document submitted as the "agreement" I cannot see any prescribed terms within the document and since they cannot be contained within another document as laid out by Tucky LJ then I cannot see any other conclusion other than the agreement rendered unenforceable

 

[sunflower99]

Hi Muffintop!

If your agreement made before 2006 the courts are very limited to wshat they can enforce in improperly executed agrements

[Ragtaggeorge]

 

Hold the horses I was just commenting on the above and trying to help define that T & C are different from prescribed terms, which from reading the suggested thread you will see :¬)

[creditcardmug]

Ok, no probs, im just trying to calm peoples fears, as a lot of posters seem to be stressing out over this subject of late...no offence meant.

[Ragtaggeorge]

I suggest a course in comprehension old boy;¬)

Prescribed terms are not T & C.

If they have the agreement as advertised it can be enforced - but only by the court.

T & C are a red herring, which is unsettling Muffin Top for no good reason

I suggest you do some further reading my friend, as in,

20. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

21. Notwithstanding point 20, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

[creditcardmug]

Thanks for the lesson,old boy

[Ragtaggeorge]

All in a days work for the Goon Squad and don't you forget it ;¬))

[Muffintop]

Thanks to both of you for bottoming this out for me NOW I DO UNDERSTAND that Terms and Conditions are NOT the same as Prescribed Terms, you will have to excuse me and talk in very plain easy speak for me as I had no idea these two things were not the same.. Now I get it and have some reading up to do again. thanks

[banker_rhymes_with]

Hello Muffintop!

 

Thanks for the PM, sorry for the delay responding.

 

I think you have already been settled by the above advice.

 

If I can add a few quick comments that may help.

 

For a pre-CCA 2006 Agreement to be Enforced by a Court, it must have, as the absolute minimum, your Signature and the Prescribed Terms contained within the four corners of the Agreement.

 

The general Terms & Conditions are not an issue, and these are often in another Document or Leaflet.

 

Those other Terms may say things like they'll charge you a default sum if you Pay them late, or they may charge you a default sum if you go over your limit etc. They may even include real bumf like MBNA will send you a Birthday Card, or you are supposed to wear a Bobble Hat on their CEO's Wedding Anniversary...stuff that can be ignored in effect if the main Agreement Regulated by the Act is pants.

 

If they have an Enforceable Agreement, i.e. a sheet of paper with your Signature contained within the four corners of it, then that is the Regulated Agreement. However, the overall Agreement can then include their other Terms & Conditions. Those general Terms can then be embodied within the Agreement, even if they are in another Document.

 

However, the Prescribed Terms cannot be found elsewhere, because the Act does not permit these to be found elsewhere. In other words, the Prescribed Terms cannot be embodied into the Regulated Agreement from somewhere else...they can only be contained not embodied.

 

This is why the Credit Card bankers are so keen to try and send people dubious Scans of what would've been on the Rear Page of an Application Form...i.e. a dubious Scan of some Terms that include the Prescribed Terms.

 

They know they'll only have one chance of getting away with this if they can somehow convince a Judge that the Prescribed Terms were on the back of the Application Form.

 

They should have the Original, and they know that, but rather than roll over at the first sign of problems, most will push the point as far as they can.

 

The ones with Original Enforceable Agreements will Enforce them. The rest will slither and squirm until they either pull out, lose, or convince a Judge that they once had an Enforceable Agreement (even if they didn't, or have lost the one they once may've had).

 

I hope this helps.

 

Cheers,

BRW

[Muffintop]

Thankyou Banker, I think a lot of people who are not up on consumer law would be confused about terms and conditions and Prescribed terms and conditons and read them as the same thing. thanks for your continued wiseness.

[Muffintop]

Just found thanks to another cagger... the tear off slip states the charges for missed payments late payments is 25.00 each time.

the naff terms and conditions they sent to make me think came with the agreement state they are 12.00 this shows as sunflower has mentioned with hers that when I opened this acc in 2004 it was in fact 25.00 but it was lowered to 12.00 much later on. another discrepancy

[underdog13]

Are the terms and conditions their present ones? - that would account for why they show £12.

[Muffintop]

Hya Underdog yes they have sent their current t and cs thats quite good for me really as its another discrepancy to have justification, reasonable doubt to take it to court and insist on the original

[sunflower99]

Thankyou Banker, I think a lot of people who are not up on consumer law would be confused about terms and conditions and Prescribed terms and conditons and read them as the same thing. thanks for your continued wiseness.

Hi Muffintop!This MBNA thread of yours is greatand helping to greatly increase my knowledge about CCAS and to gain more understanding about the laws concerning them!

[Muffintop]

tnx Sunflower

I think its down to the people who are very up on this issue and the fact they share openly with us all and we can access it.

[Muffintop]

Has anyone heard of a debt collection agency called AEGIS Ltd

[underdog13]

I've heard of them, but haven't had any dealings with them. Have you tried doing a search of the forums (tools at the top) to see if there is any info on them?

[angel_1]

Has anyone heard of a debt collection agency called AEGIS Ltd

 

 

hiya muffintop,

 

i had a letter from aegis on behalf of mbna chasing up payment, so passed collection to aegis by mbna,

 

have you had a call or letter?

 

im sure there must be other threads about them

 

hope that kind of helps a little, laters angel x