Taz11 v MBNA Enforceable ??

[Taz11]

Thanks Dave, sorry I missed your post 20, just read it. Its interesting what you say with regards to the documents being shredded soon after. I would also be interested in knowing if they go to court that they MUST PRODUCE THE ORIGINAL to enforce the debt, and as cosalt says they are trying to bluff us into thinking they have it, hoping we won't go that far. Is that a fair assumption Dave?, because if it is, I'm quite willing to fight it (similar to RBOS) to force them to produce the original.

 

If these companies shred their originals, and originals are required in court, surely they don't have a leg to stand on ???

 

thanks Taz11

 

whoops!!, you wrote post 25 whilst I waas typing this.........lol

[cosalt]

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

 

Thanks for clearing that up, so it would be up to us to prove / persuade the judge that the original signed agreemet differed from that they had produced.

[davefirewalker]

Thanks for clearing that up, so it would be up to us to prove / persuade the judge that the original signed agreemet differed from that they had produced.

 

AGAIN....you have learnt well glasshopper

 

Failing 100% unenforceability You NEED to be able to introduce DOUBT as to the validity and compliance of the agreement with the Act.

 

Dave

[Taz11]

Blimey !!, I'm pretty lost now. All the time reading through all the posts I've been working on the basis that they must produce the original, signed copy etc....., and it now seems they can send you what they like, as long as they feel they have complied with your cca request, which in turn brings the agreement back out of default.

 

So in the event that companies "think" they have complied, what should our answers be (letter template), if we are not happy with what they have sent and would like to contest it.

 

If they can obviously produce a copy in court, what is the point of SAR or CPR. I really need to get my head around this, especially with this MBNA one, as I fear its on the edge, but not really sure how to answer them to contest what they have sent me.

 

 

guess what?, advice again please

 

Taz11

[Taz11]

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

 

 

Your thoughts on this Dave. If I was to contest this, what would the ideal reply be to MBNA with regards to your statement above. Do I need to make them aware that I think the agreement is "flawed" or would you advise to let them have the ball in their court and let them prove otherwise. I'm not quite sure what course of action I should now take ??

 

thanks again

 

Taz11

[silverfox1961]

Morning,

Have you thought about bluffing them into thinking you will be taking legal action? This thread is very interesting if you haven't seen it:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html#post1868913

 

Sending a cpr 31.16 request may make them sit up and take notice.

 

fox

[Taz11]

Morning Silverfox,

 

yes, I know that is an option, but that is a request requring an agreement which bears my signature, which by the looks of it, they have provided. I think I've got to prove/show in some kind of statement to them that the agreement they provided is not enforceable/properly executed for whatever reason ???

 

I'm trying to find a fault in the document which would enable me to do this ???

 

I was on till 2 o' clock this morning reading thread after thread on this, and this is what I came up with. I know it may not be correct, but I'd like opinions on the following if possible.

 

thanks Taz11

 

A)

 

85 Duty on issue of new credit-tokens

 

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

 

(2) If the creditor fails to comply with this section—

 

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

 

(b) if the default continues for one month he commits an offence.

 

 

(3) This section does not apply to a small agreement.

 

In other words, MBNA will have defaulted on the agreement by not providing me with an executed copy everytime they have sent a new card ????

 

B)

 

I have read on a thread somewhere by the godmother, that the agreement must provide a right to cancel and information must be provided by the creditor to the debitor where to write/reply. There is nothing on this agreement stating that....simply that it will be sent on?? I have no information with the documentation they sent me that this was provided.

 

 

c)

 

Even in laymans terms, The document they have sent me, merely shows that I have applied for credit on a priority application form.

[Taz11]

Ok, I'm really trying to get my head around a letter to send them.

 

Having now read it over and over again, my thought are this;

 

Should there be a statement of some description specifying who the lender is and address of the lender?? In other words, I'm making an agreement with blah, blah,blah

 

I am not convinced that "their" signature was signed at the time of the application. It definately looks like it has been added afterwards, and even if it was, surely it should state, signed on behalf of the creditor or MBNA. Any Joe Bloggs could have scribbled across it.

 

 

It does not, anywhere on the document say, I abide/bound by terms and conditions overleaf, merely "conditions of the card", and as previously pointed out the terms could be from anywhere unless it is shown to prove on the original document that it backed the front.

 

I would first like to know if I have a small but viable case with any of the above and what kind/sort of letter I should reply to them with, or at least show that I am contesting it to show that I am on the ball and just not going to crumble.

 

thanks

 

Taz11

[davefirewalker]

It is my opinion.........and only an opinion......(based on what knowledge I have gleaned over the time I have been on this site).

 

That you have a "chance" of avoiding this one.

 

please bear in mind that if it goes to court (which it may not) it depends on the judge on the day.

 

I have seen 100% cases fail....obviously then not 100%.

 

It depends on the quality of argument that you put forward.

 

you NEED to tell the judge the law you NEED to explain that the other side has NOT complied and WHY you think this is so.

 

have a look at the draft POC on my thread post527 I think....

 

it lays out what is wrong ...why...and what I want

 

but that is a long way in the future........

 

lets see what we know

 

1 they have sent you a copy of the agreement bearing your sig

2 they have sent a partial copy of the t&c's that contain the prescribed terms

3 there is NO reference to TERMS overleaf only conditions

4 there seems to be no way of linking the two pages

 

that said I would say you had a reasonable chance........but only you can make that decision though.

 

I would do some MEGA research first.......dont listen to anyone who only puts one point of view across, Ive seen some people pushed towards court by bad advice and a sort of common euphoria...ignoring the obvious facts.

 

I suppose I mean to say that NONE of us are experts here, we make judgements based on a common belief, which is sometimes wrong.

 

YOU need to be sure of the facts and the possible downfalls

 

Sorry for the lecture

 

Do some research and go for it ..........they will in all eventuality give up before court

 

rgds

 

Dave

[Taz11]

Thanks Dave,

 

I have looked all over the net, obviously including here for information, and to be honest I have got to try. I am currently filed with CAB because of debt, and if there is the slightest chance I can contest something I will give it a chance. Before starting all this I was dead certain I was going to go the bankrupt route, as I couldn't see an end to the worry, stress, anxiety, constant letters and phone calls.

After viewing this site, I thought i would give myself half a chance and try to at least contest the agreements and maybe reduce some of the debt. If it all goes wrong, I will have to take the bankruptcy route, there is no alternative. I am now unemployed, on benefit and will probably lose the house, so its a time to go down fighting I'm afraid.

 

No worries Dave, its not a lecture, and really appreciate your input, and if I can just find a little something in a letter which may make them think twice, then its a small bonus. If I sit back and accept it, they'll walk all over me. If I can hit them with something back, at least I have put them off for a while. The inevitable may happen, but if I can find the slightest chink in their armour I'll go for it.

 

Sorry for the sob story, just saying it as it is.

 

regards

 

Taz11

[davefirewalker]

No worries......I was just trying to get the point over that you NEED to know what you are asking them...I seen too many people go off half cock......not knowing the legislation, and not researching...just going off what people have told them....and guess what.....the majority have lost.

 

be a boy scout........be PREPARED.

 

this site is a self help group and there are some extremely knowledgeable people on here, including some solicitors.

 

I think that you have a chance....so go for it

 

rgds

 

Dave

[Taz11]

What I'll do Dave, if its ok with you, is put a letter together and would you mind checking it over, just in case I put something in that might make me look a complete idiot..lol

 

thanks

 

Taz11

[davefirewalker]

no probs......

 

Dave

[Taz11]

What do you think Dave, I'm trying to get my point across, that I don't agree that what they have sent complies with my request. I may be wrong and barking up the wrong tree. Please advise me if there is anything blatantly wrong.........I am a novice..lol

 

 

thanks

 

 

Taz11

 

 

 

 

 

 

 

Dear Sir,

 

 

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

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8..

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

 

 

The document forwarded to me is infact an application form. As I’m sure you are aware from section 61(1) of CCA 74

 

61.--(1) A regulated agreement is not properly executed unless--

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

The Application form you enclosed did not contain the prescribed terms neither did it detail the location of the Prescribed Terms within the document. The document stated card conditions overleaf, which cannot be recognized as “prescribed terms” as stated in section 61 (1) of CCA 74.

 

Although your letter stated terms and conditions enclosed, the two independent pages (application form and terms and conditions), although hand written (in different handwriting) with the same numbers, cannot be proven to be one and the same document unless the original is available to view. There are no references or page numbers to justify that they are of one and the same document.

 

Section 61 (1) (a) also states that the document must be signed in the prescribed manner by the debtor and creditor. There is no apparent signatory on behalf of MBNA on the application form, the scribble across the sheet is illegible and cannot be deemed as an authorization on behalf of the creditor. Again, the original Consumer Credit Agreement would be required to show that authorisation has been given by, and on behalf of MBNA

 

 

 

Finally I would like to make you aware of Section 85 of CCA 74, which states the following,

 

85 Duty on issue of new credit-tokens

 

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

(2) If the creditor fails to comply with this section—

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

(b) if the default continues for one month he commits an offence.

 

(3) This section does not apply to a small agreement.

 

Suffice to say in this instance, MBNA have defaulted on any alleged agreement by not complying with Section 85, by witholding a copy of the executed agreement at the time of presenting subsequent new credit tokens (credit cards). Providing or forwarding new terms and conditions with each card cannot be recognized as an executed agreement.

With this in mind, the account is in default, and the application form provided is neither acceptable as an original copy of my CCA request, neither is it properly executed. My request for an original copy of my Consumer Credit Agreement executed correctly, and containing the prescribed terms still stands.

 

 

Yours Faithfully.

[davefirewalker]

Hi Taz

 

its a bit all over the place.........

 

will see what I can do....tomorrow,.....its wine time tonight dont want to get it wrong

 

dave

[Taz11]

No probs Dave..............enjoy your wine m8...lol

 

I look forward to your advice with any mistakes I have made. Just got in from a party myself,so slightly annebriated..........lol

 

thanks again

 

TAZ11

[citizenB]

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

 

 

This is my thinking as well.

[Taz11]

Thank you citizenB, your input is appreciated. I am trying to find some kind of template with which to reply to this, but as of yet been unable to find one that is appropriate/adaptable. Dave was going to draft me one, but haven't seen him on line recently. ( I do understand, people do not sit reading this forum day in day out and have other business....lol)

Would you suggest I reply? , or sit tight and let them sell it on ??

 

any advice greatfully accepted.

 

I would also appreciate it if you wouldn't mind taking a look at my other cca copy on Taz11 v Co-op enforceable cca ??

 

Thanks

 

regards

Taz11

[citizenB]

I think if it ever got to the court stage you could question the integrity of the documents supplied.

 

There does need to be a link between the two pages for them to be considered "one" which would embody anything.. let alone prescribed terms.

 

The link below gives some idea of what needs to happen when they want to scan documents and then destroy the originals

 

Document Management, Document Imaging, Document Scanning | Archival

[cosalt]

I think if it ever got to the court stage you could question the integrity of the documents supplied.

 

There does need to be a link between the two pages for them to be considered "one" which would embody anything.. let alone prescribed terms.

 

The link below gives some idea of what needs to happen when they want to scan documents and then destroy the originals

 

Document Management, Document Imaging, Document Scanning | Archival

 

 

That's a great link CB

 

Can't imagine MBNA muppets have followed those procedures

[Taz11]

That is an excellent read citizenB. I haven't read all, but particularly the "scanning" paragraphs. In effect its very similar to "evidence" held by police hand held speed cameras, where protocol has to be observed with regards to a new sealed memory card being used, being dated, signed etc...and also stored in the prescribed manner.

I know this is slightly a different avenue, but basically the same idea.

So if the "said" company have not followed the correct protocol with regards to the requirements of the scanning process, could it be questioned/argued that they have not fulfilled the necesaary requirements.

 

Excellent information!!. I have bookmarked that and printed it....lol for future reference.

 

Thank you again.

 

Taz11

[citizenB]

Sorry Taz, I missed your earlier post requesting help with a letter.. I will have a think on that one for you.. give me a couple of hours. And yes, I will pop along and have a look at your other thread.

[Taz11]

thanks citizenB,

 

A drafted letter would be excellent, thank you. I would adapt it for Co-op aswell.

 

 

Just one more point, is there any point in going down the "new tokens" route, whereas, a new executed agreement should be forwarded in the event of a subsequent new cards being sent, and if this is not complied with then the account is in dispute anyway. I have seen this mentioned on here, but no specific answer to whether it is plausible or not.??

regards

 

Taz11

[citizenB]

Taz, I think the "new token" issue has been debated on other threads, but to be honest I didnt really understand it.. If you are going head to head with these guys you do have be pretty sure of what you are saying, therefore I cant comment on that one.

 

Page 4 of your documents is without question a current terms and conditions page. There are default charges shown at £12.00 and as these didnt come into force until about 2005/2006 there is no way the page could be historical. That leaves you with just the first 2 pages.. are they linked.

 

For this one, I would suggest sending the CPR letter on Paul's thread, I gave you the link to that on your co-op pages.

 

Now you could use one of the many letters going into great detail on what is wrong with the document they have provided.. MBNA will for sure totally blank you. Once switched on, MBNA keep rolling. Have a look at the many MBNA threads for evidence of that.

 

I recommend you change tactics and hit them with the CPR letter, unless in the meantime Dave returns with a better idea.

[Taz11]

Would you maybe think this is a bit over the top??. The original cpr requests a signatory agreement, but mine had a signature, so I have omitted this bit and tried to put over the fact that the "application form" and the Terms and Conditions page are not related in any way. I've also included some information regarding the procedures required to store electronic information.

 

Could you advise accordingly if I have made mistakes anywhere............I'm still a noob...lol

 

thanks again.

 

Taz11

 

 

 

 

Dear Sirs

 

Account number

 

I write with regards to the above account with your organisation.

 

I respectfully request that you provide me by return a true copy of the credit agreement. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed. The documentation you have sent me is noticeably absent of prescribed terms relating to the account. The pages you have sent me are not proven to be either connected or related to each other and are missing any recorded data which could in fact relate the documents. I trust the BSI 008 Code of Practice On Legal Admissibility and Evidential Weight of Information Stored Electronically has been followed which states the following,

 

An organisation needs to demonstrate that it complies with the five principles of information management on which the Code is based. These principles are encapsulated into a code of practice - the “Code of Practice for Legal Admissibility and Evidential Weight for Information Stored Electronically” (BIP0008) published by the British Standards Institute. Compliance with BIP0008 will ensure that the organisation manages its information according to best practice, thereby maximising the chance of electronic records being satisfactorily authenticated.

An organisation will need to have in place the following five information management components:

 

• 1. Representation of Information (i.e. an information management policy)

• 2. A Duty of Care

• 3. Business Procedures and Processes

• 4. Enabling Technologies

• 5. Audit Trails

 

 

I bring to your attention Component 3 of the code which specifically states the recommendations of the code are as follows, with regards to scanned documents;

The Scanning Process

The Code requires, for example, that records be kept on the system audit trail of key information concerning imported documents. This information should include as a minimum:

 

• Unique identifier for each batch of documents

• Date and time of scanning

• Identity of the person who performed the scanning

• Type of material scanned (e.g. paper document, microfilm, aperture card, etc.)

• Number of documents and number of pages in each document scanned

• Detail of post-scanning processes (de-skewing, de-speckling, etc.) performed

The Code recommends that records be kept in batches so it is easier to check that:

• All required activity has been performed

• Any anomalies have been noted

• Appropriate quality procedures have been completed

• Records of any exception processing have been made

 

 

 

Obviously if the agreement is improperly executed I would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances.

 

Please confirm if you still hold a copy of my signed agreement, which specifically states within the signatory agreement where the "prescribed terms"can be found or located. I would expect a properly executed agreement to contain the prescribed terms, and information within the original document detailing where the "prescribed terms" are located. I hope that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and would ask for a response by 4pm on XXXX Date ( Give 21 days to respond)

 

Regards