Taz11 v MBNA Enforceable ??

[Taz11]

Having cca'ed MBNA, and them not complying, I sent a non compliance letter........today I received this, on half a sheet of A4 paper, hardly readable its so small. Terms/conditions etc on separate sheets, pretty much bog standard photo copies. After seeing the amount of application forms on here which creditors deem to be "consumer credit agreements" I can only assume this is an application form and not an "agreement".

 

For those experts among us, could you take a look please. I've also attached as a .pdf file so that it can be zoomed in.

 

Do I need to send them another letter to say this is not a true copy, or do I just sit and wait for them to try court action??

 

Thanks for any input

 

I've also just noticed, that whatever that is across the form??, It looks like someone has tried to sign a piece of sellotape and stick it to the form. I can see the writing underneath the "signature". If this was signed at source, the form wording would be hidden??

 

Taz11

CCA1.pdf

Edited January 16, 2009 by Taz11

[silverfox1961]

Hi Taz,

Is that all they sent you.

As far as I can tell, there is something missing from that "agreement"(application form really)

APR

Credit limit or a statement saying they will tell you what the limit is.

Prescribed terms

There could be more but as I've replied it will bump this up.

 

fox

[Taz11]

thanks Silverfox,

 

yes there is more, but was under the impression it had to be all enclosed within 4 corners etc...

 

I'll post the other pages, see what you think.??

 

thanks Taz11

[Taz11]

ok here goes

 

page 1

 

 

Page 2

 

page 3

 

 

page 4 this backs up page 3 ^^^

 

 

 

...and it pretty much continues like that. I'm not experienced with these issues, but to me it says application form ???

 

Input appreciated, thanks Taz11

Edited January 16, 2009 by Taz11

[silverfox1961]

I'm not too experience either Taz but I can say that they are current terms and conditions, not the ones you had when you first took out the card and of course the "agreement" has nothing on it for the conditions of use. In my opinion, it's rubbish but I'll let others have their say too.

 

fox

[davefirewalker]

hmmmmmmmm

 

P2 could be the back of the agreement.....in which case you could be in trouble........

 

HOWEVER.....I see no mention (my eyes are quite bad though) of T&C's overleaf.......there doesnt seem to be anything to link the two pages.....

 

as regards "the four corners"....that reference is often taken wrong. it was made to express the opinion that the prescribed terms and the important stuff should be in the same document......not in a separate booklet. A document can run to hundreds of pages, though in our cases 2 or 3 is usually the case.

 

hope this helps........read up (google if necessary) on wilson v hurstanger and wilson v secretary of state 2003.

 

rgds

 

Dave

[Taz11]

the type is so small its unreadable, I've had to get a magnyfying glass to take a look, and it does say "set out in the MBNA conditions of use overleaf" ????

 

Is this still not an application form though ??

 

thanks again

TAZ11

[davefirewalker]

An application form CAN double as an agreement......and it is valid IF and only IF it complies with the cca 1974......in that it contains the prescribed terms and that the format is correct.

 

you really need to read, the Consumer credit act 1974, The Consumer Credit (agreements) regulations 1983 and the various amendments.

 

most of it is mumbo jumbo and slightly irrelevant to you

 

CCA1974 sections 18, 60 - 65, 127, 142, 172, 189 and maybe a quick look thruogh the rest

 

the 1983 regs are only a few pages long...quite easy to parse

 

happy reading

 

take care

 

rgds

 

dave

[Taz11]

Thanks Dave,

 

Firstly, where can I find a good link to read the above.......and secondly if the above is a true copy does it need to be signed by the creditor in order to make it enforceable??

 

I'm just suspect of that squiggle across the form which appears to have been stuck on afterwards ??

 

thanks

 

Taz11

[davefirewalker]

Thanks Dave,

 

Firstly, where can I find a good link to read the above.......and secondly if the above is a true copy does it need to be signed by the creditor in order to make it enforceable??

 

I'm just suspect of that squiggle across the form which appears to have been stuck on afterwards ??

 

thanks

 

Taz11

 

NO...not signing would only make it improperly executed........it would only take them to apply to the court to get it enforced........but that signature looks for all the world like a stamp. A stamp is a legal form of signature and is allowed.

 

sorry

 

BUT....there is NOTHING to link the t&c to the agreement......no page nos. no printing nothing

 

Dave

Edited January 16, 2009 by davefirewalker

[davefirewalker]

BUT.....try as I might I cant see any reference on the agreement to t&c's overleaf !!! or anywhere else for that matter

 

could someone with better eyes have a look

 

Dave

[Taz11]

I agree the "round" object looks like a stamp, but not so sure of the "signature" enclosed in that weird looking shape. You are correct in saying there is no relation to page numbers, printing etc.... It just says "conditions of use overleaf"

 

Should it also state my credit limit ?? (not sure).

 

In this case, with regards to not being entirely sure, what would your advice be Dave in order to determine if it is a true copy. Would you advise the Subject Access Request route as I have with RBOS ??

 

Thanks again

 

 

I'll try and scan it in, but its so small !!! (conditions overleaf)

 

Taz11

[davefirewalker]

I would imagine that that was a true copy.......ie it IS the form you filled in, so you would be unlikely to get anything different

 

If it makes no reference to TERMs and conditions overleaf, and only conditions of use, then the second page is meaningless. the agreement is uneforceable (in my opinion)

 

dont go out and celebrate just yet though...lets see if we can get some other views

 

rgds

 

Dave

[davefirewalker]

Thanks Dave,

 

Firstly, where can I find a good link to read the above.......and secondly if the above is a true copy does it need to be signed by the creditor in order to make it enforceable??

 

I'm just suspect of that squiggle across the form which appears to have been stuck on afterwards ??

 

thanks

 

Taz11

 

The links to the "acts are on here somewhere...I think in the stickies posted by zootscoot....I'll try to find them for you

 

Dave

[Taz11]

I won't m8, don't worry...lol

 

Really appreciate your patience and help Dave. I've scanned the piece but it is so bad !!!!!

 

I'll post it below

mbna snippet.pdf

[Taz11]

"to be bound by the mbna credit card conditions of use"(as set out on the reverse of this agreement and as amended from time to time)

[cosalt]

If you look at the hand written number on page 2, I would assume this is put on before it is scanned so they can link it to the front page. If you look at the number on the front page, it is clearly the same (although with extra digits) but is most definately not the same hand writing. If page 2 was on the back it would have been scanned at exactly the same time, so why would 2 different people have wriiten the numbers. I would guess one of the pages has had the number written on at a later date to make the pages look linked.

 

Its only my opinion but I think it makes sense.

[Taz11]

I can see your point, but if it were the original document, and they are unable to produce both sides at once on a single sheet, would they not individually scan both sides and then write the number on the second scan to show it is connected to the first. In other words if they were to produce the "true document" it could well have numbers on both sides. One being the original and the second being added to show it was the other side connected to the first for scan purposes only.

 

jeeeez !! I hope i'm making sense...lol

 

thanks for your input, its appreciated.

 

Taz11

[cosalt]

Ok, but if that number was always on the front, it still does not prove what was on the back, they could have written that number on any blank terms and conditions to make it look like they were on the back.

 

I know it says turn over for the terms and conditions, but it does not mean it was those terms and conditions.

 

The only way to confirm this would be to see the original, I have asked MBNA if I can visit their offices to view the original.I believe it is a perfectly reasonable request. Strangely enough they have gone very quiet since then......

[davefirewalker]

I think the important wording here is "I agree to be bound by the conditions of use"

 

NOT "I agree to be bound by the TERMS and conditions of use"

 

the word conditions has no real legal effect....you dont get prescribed conditions

 

rgds

 

Dave

Edited January 16, 2009 by davefirewalker

[Taz11]

thanks cosalt,

 

yes, I agree. Until they actually put it infront of me, its going to be very hard to say. I'm hoping Dave will come back with his feelings on the snippet I posted.

I know its very hard to accept that an agreement is enforceable, but these companies seem to be trying to pull the wool over our eyes so much, you just can't believe anything.

I would like to know what action to take now to get an exact copy of the true agreement and what wording I would use to reply to MBNA to say that I do not think this is a true representation of my agreement. I feel maybe another SAR coming on. To be honest, it is so small, its so hard to read anything on it.

 

regards

Taz11

[davefirewalker]

They will not have the original agreement.......can you imagine the logistics of storing millions of applications / agreements, and being able to find them.....

 

NO they are all digitised and put onto a computer, then the originals are shredded very soon after sometimes within a month.

 

see post 20 for my thoughts on the agreement

 

rgds

 

Dave

Edited January 17, 2009 by davefirewalker

[cosalt]

Taz11, I have a similar problem with barclaycard, they have responded to my CCA request by sending a copy of the type of agreement I signed rather than the actual agreement. They believe they have conformed with my request as they are entitled to miss out certain info such as signature etc.

 

If you take a look at my thread

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/177457-barclaycard-their-response-my.html

 

I have no taken, as advised, a different aproach, asking for a disclosure of the document on the basis that I am considerig action against them.

 

It will be interesting to see what happens, although I suspect the will ignore it and continue to harass me via Mercers/Calders.

[cosalt]

They will not have the original agreement.......can you imagine the logistics of storing millions of applications / agreements, and being able to find them.....

 

NO they are all digitised and put onto a computer, then the originals are shredded.

 

see post 20 for my thoughts on the agreement

 

rgds

 

Dave

 

Hi Dave

 

I have no doubt that they do not have the agreement, they just want us to believe they have.

 

Would they need the original in court, or will a copy suffice? I am unsure of this point.

 

[davefirewalker]

Believe it or not a copy WILL do !! I did some research into this and was suprised by what I found.

 

Take for example CCTV..most of it is stored digitally, to view it you would have to transfer it in memory...so you are in fact viewing a copy.....its really mind blowing stuff...I had a headache for ages

 

mind you it not as bad as contract law.........arggghhhh

 

 

Dave