Taz11 v MBNA Enforceable ??

[citizenB]

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 an unsigned copy will not suffice, only a copy of the original contract in its unaltered form will be acceptable 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

 

This seems ok to me.

 

I have linked you to another thread. Lexis is taking BOS to task for not providing a legible document, however, even the illegible document appears to be absent the prescribed terms. There are several letters on her thread which amended/adjusted to your situation might also be worthwile considering.

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/160990-lexis200-bos-take-two.html

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/156429-lexis200-hbos-blair-oliver.html

[Taz11]

Thanks citizenB, have just read the threads and subscribed. I have a feeling I maybe using some of those letter templates..lol

 

regards

Taz11

[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

 

I trust an organisation such as yourselves adhere to the recommendations as described above, and would therefore be able to validate any of the recorded data you store associated with an agreement you hold on an account if it were questioned.

 

 

 

 

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

 

 

I was going to add the piece in Red, what do you think, or does it not make sense. If anyone can phrase it better, please do.

 

thanks

Taz11

[citizenB]

I think the extra paragraph is superflous Taz. You have advised them what the law expects of them, by doing this you are letting them know that YOU have this knowledge of what they should be doing and if they havent then you will be questioning in great detail.

[Taz11]

Ok, thanks cb (i hope i can call you that now...lol). I'll leave the extra bit out then. In this case less is more...lol,

 

thanks again.

Taz11

[citizenB]

Ok, thanks cb (i hope i can call you that now...lol). I'll leave the extra bit out then. In this case less is more...lol,

 

thanks again.

Taz11

 

.. Yep, less is more. MBNA are b*ggers to deal with.. as they so often tell us.. They are an American Bank and UK laws dont apply to them

[bladeboy]

Subbing

 

Oh, this is all good stuff. They'll rely on what they hope will be your lack of knowledge.

[ltc1607]

hi I have been reading your thread I have had a cca from MBNA and my terms and conditions are on the back so small you cant read them but are you saying there has to be a note on the front of the doc to refer you to the conditions onthe back.

[Taz11]

Hi,

on my cca there is no reference to terms anywhere, just conditions of use. There are no references to % rates, interest rates, credit limits...etc.... only on a separate sheet, but there is no evidence to prove/show that the separate terms are related to the front of the sheet. I think it would be best if you posted it up on your own thread for others more experienced than me to give their opinions on its wether or not your cca is enforceable or not??.

 

Hope that helps,

 

regards

 

Taz11

[Taz11]

After sending the letter above, I've received a text message from MBNA to contact them regarding my recent correspondence, and a message on my answer phone to contact Matthew somebody or another urgently...............Guess the answer to that is going to be NO

[citizenB]

After sending the letter above, I've received a text message from MBNA to contact them regarding my recent correspondence, and a message on my answer phone to contact Matthew somebody or another urgently...............Guess the answer to that is going to be NO

 

 

I reckon your response is going to spoil his day. The reason they want you to phone is so there is no record. Be prepared for a smarmy, mind boggling reponse by letter in a couple of days.

[Taz11]

lol, I'm ready and waiting :cool: thanks for keeping in touch with my thread cb, I may need your back up and support/advice when that letter hits my doormat

 

I'll let you know when I get it

 

thanks

 

Taz11

[pelham9]

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

APR

etc

 

Siverfox

 

I think you are giving a list of the prescribed terms for revolving credit agreements. I know exactly what you mean when you use the term APR in this context. But it is incorrect usage and there are many reasons why this usage should be avoided. I will post on this here if you like but I have posted extensively on these boards elsewhere on this subject.

 

The %APR is not a prescribed term but 'the rate of interest to be applied' is. %APR hardly ever equals the annual rate which is the 'rate of interest to be applied '.

Edited January 30, 2009 by pelham9
Post turned out to be unfinished

[pelham9]

TAZ11

 

All the discussion on your thread has been about whether the Ts & Cs they have given you can be construed as part of the 'agreement'. I do not think they can but have you considered whether the prescribed terms that they claim are in the disputed document are in fact correct?

 

If they are not correct it does not matter if that these pages are found to be part of the 'agreement' because if the interest prescribed term is not shown properly the agreenent is totally unenforceable. It might be that if the prescribed tems are shown incorrectly you should be encourageing them in their delusion that the Ts & Cs are part of the agreement. It is pointless spending a lot of energy excluding documents that prove your case!!

 

If you like I will check out that interest table but it would be nice if you would blow it up with your clever pdf technique so that I can accurately decypher it.

 

I see many MBNA application forms and Ts & Cs in my mail - I must be a good credit risk - and I have not seen Ts & Cs from them that have it right.

[Taz11]

Hi pelham9,

 

no problem. I'll get it uploaded asap, and most welcome to take a look. I have a sneaking suspicion they may be correct??, but I'm obviously no expert thats why I'm baseing the fact on they are not connected in anyway, neither does it say on the app form where they can be found??

 

thanks

 

Taz11

mbna t&c's.pdf

Edited January 30, 2009 by Taz11

[pelham9]

Great - it could be very interesting.

 

I can see the defence now.

 

1) The defendant denies that the Ts & Cs are part of the agreemment ....

 

2) In the event that the court finds that the Ts & Cs are part of the agreement the defendant avers that the agreement is nevertheless unenforceable because ....

 

But I am getting ahead of myself.

[Taz11]

Hi pelham9,

 

 

sorry ??, could you explain?. I'm not sure if you are being sarcastic with regards I have ,little or no defence, or agreeing that its possible.

 

thanks

 

Taz11

[pelham9]

As expected I thinlk there are errors concerning interest rates in the Ts & Cs which could well make your 'agreement' unenforceable. I will write more in a further post on this. Could you check thst the monthly rate for purchases was was actually 1.45%? The monthly figure is usually shown on MBNA statements but this looks like a rounded figure and they could well have actually charged something higher.

 

The calculations use O-level maths so ought to be understood by the majority of people though the skills will have to be relearnt because up to recently the banks have been taken as honest -a supposition that CAG has repeatably disproved - so nobody checks their calculations. I will do my best to be clear but if you do not understand something tell me and I will try to explain.

 

There are a nunber of preliminary points that should be made as they help to understand the errors and why the banks are making them. I think the errors are deliberate to pull the wool over the eyes of customers and particularly judges.

 

Compound interest calculations.

 

The APR legislation ( see below) forced all interest calculations to be done using compound methods. The most useful formulas are

 

a)to get an annual rate from a monthly rate

 

annual rate = ((1 + monthly rate /100)^12)-1)x100

 

b) to get a monthly rate from an annual rate

 

monthly rate =((1+annual rate /100)^(1/12)-1)x100

 

They look difficult but are essentially very simple. You can do the calculations on any scientific calculater which has the x^y function and the abilitty to calculate to about 7 decimal places. I would suggest the sccientific calculater supplied with Windows.

 

^12 means to the power of 12. ^(i/12) means the 12th root. a) is the reverse of b).

 

One of the problems of taking the 12th root is that the answers will always be a decimal that recurs so rounding at some point is inevitable. To be accurate to the nearest penny four decimal places are required so if you see a monthly rate derived from a yearly rate shown to less than four decinal places you know it is innacurate.

 

The %APR.

 

The APR concept was introduced after CCA 1974 but before the CCA 1983 regulations. It was designed to promote 'truth in lending'. It had the effect of ensuring that all interest calculations were done by compound methods. So the flat rate [problem] and simple interest [problem] were immediately outlawed. (if you want to know more ask me) nuch to the consternation of the banks. The banks managed to salvage a tiny part of their scams by a concession that the %APR only needed to be shown rounded to one decimal place. This of course immediately made the %APR unsuitable as a figure to calcuate interest for which 4 decimal places are required.

 

The %APR was also designed as a total cost of borrowing measure so banks were forced to include annual fees and compulsory PPI etc in the figure. So %APR = rate to be charged + fees in %terms. In this case it is obvious that the %APR is not the rate to be charged. Its main use is in advertising so that punters can more easily compare loan rates and conditions. What it cannot be is a prescibed term for CCA agreements. If you ever thought that the %APR was the rate of interest that you would in fact pay I hope this disabuses you.

 

The addition of fees to the %APR makes calculation of it tedoius and rerquires computers. The equation looks horrendous and is the reason I am sure that lawyers on this board avoid the subject. If you stick to the bits where there are no fees the dofficult formula simplifies to the equations above.

 

The %APR [problem]

This is an exploitation of the rounding allowed in the %APR. It means that punters will pay slightly more interest than thay would have thought but of course the banks gain millions overall. They advertise a %APR of say 15.9%. You would think the rate of interest you would pay is 15.9% per annum which is 1.2732% monthly but they will in fact charge 1.2408% monthly.

 

If you work from 1.2408% monthly you will find that the interest rate you have been charged is 15.9489.. This figure which is the prescribed term can be rounded to 15.9% APR. So they hoodwink people by saying that the %APR = the annual rate = the prescibrd term. Nearly everyone I talk to thinks that the %APR is the figure to take when calculating interest. If you do so you will not get the right answers. You will also fall for their propaganda that annual rate = APR

 

This is why I was critical of Siverfox for saying that the prescribed term was the APR.

[citizenB]

Hi pelham9,

 

 

sorry ??, could you explain?. I'm not sure if you are being sarcastic with regards I have ,little or no defence, or agreeing that its possible.

 

thanks

 

Taz11

 

 

Taz, I think you have misunderstood Pelham's humour.. he is seeing into the future.. if MBNA were foolish to go ahead to litigation, how you would word your defence at that point

[Taz11]

lol... yh, I didn't take offence, I was just confused with the answer and wasn't sure what angle the statement was coming from. I really appreciate all the input given to me by members. Not knowing enough myself, I do rely on you guys/girls advising. So thanks again to both of you. I'll keep on it

[Taz11]

Ok cb and pelham,

 

I'll try and give as much information as possible and see if you can pick any bones out of it. The account is allegedly from 1996. I cca'ed MBNA and received the application form as posted earlier and separate T&C's. I do not have any statements from the first years myself as they have all been shredded by now, so not sure of initial interest rates charged on the account.

 

I haven't received any historical statements from MBNA, only in the form I have attached here, and this only starts from 2002 ???.

 

Now should I just sit tight and wait to see the reply from my letter, and then request a SAR to see my original statements...............or If they had them would/shouldn't they have sent them in the correct form with my cca request dating from the time the account was "allegedly" opened.

 

I now understand what you are getting at pelham, but without documentation to show evidence of the monthly rate of purchase where and how should I obtain it ???

 

thanks very much again Taz11

mbna statement.pdf

[pelham9]

sorry ??, could you explain?. I'm not sure if you are being sarcastic with regards I have ,little or no defence, or agreeing that its possible.

 

.

 

I was trying to point out that a two part defence (should MBNA be stupid and go the court route) is better than one.

 

I think that your main point that the Ts & Cs are not part of the agreement is very strong and should win the day because there are then no prescribed terms at all. If a judge decides that the Ts & Cs are part of the agreement MBNA will be saying that the prescribed terms are then all present. If you can say convincingly that the so called prescribed terms are inaccurate you still win.

 

If I can show that the "prescribed terms" in the Ts & Cs are inaccurate I can increase your already high chance of success.

[Taz11]

Thanks Pelham, very much appreciated. As I stated earlier I have no historic statements, either copies or otherwise. I might add that the "list" attached (which starts at 2002) above has no mention of my name or address on any of it, or any transactions??, just charges and payments, and also my account number in the left hand column changes in May 2004. I would assume ????, that this would be a change of card maybe ???, but I'm not sure as there is nothing on any of the pages providing any detailed information.

 

Should I wait for a reply to my letter before going any further. In other words give them enough rope and.....

 

thanks again Taz11

[citizenB]

Yes, wait for their response to your letter, but be ready with some more rope

[pelham9]

Well that is a shame. You really need the very first statement that shows an interest payment. Then we could check that they did indeed apply the correct rate to your debt. It might just be worth sending a Subject Access Request but it is very likely they genuinely do not have that statement and in any case they may not send it if they think you are checking up on them.

 

In your original posting of the actual documents you posted two pages of Ts & CS. The first one (page 3) which you put in PDF format for me to read looks as if it could be the original Ts & Cs that might have been attached in some way to the application form. It is not however dated therefore no proof.. Is there any reason to believe that it is not the original Ts & Cs. Credit card companies when challenged to produce documents will often not send the original documents but anything that comes to hand. MBNA do appear to have sent you a later Ts & Cs - your page 4. Could you put this in PDF format as well.

 

With regard to the first document which may or may not (no proof) have been the Ts & Cs used with your original document I think there is an error but the error is in your favour!!!

 

In paragraph 3 they say that purchases will be charged at 1.45% monthly eqivalent to 18.9%APR. Now 1.45% monthly is 18.857% which can be rounded UP to 18.9% APR. Seems OK but two things puzzle me

a) the 1.45 is only two decimal places and that suggest there are more decimal places not shown - you will remember that four places are required for acurate interest calculation.

b) I have never seen a monthly interest rate that is lower than the APR can bear. Even if the annual rate was 18.9 (a true APR of 18.9) they could charge 1.4531 monthly. More likely they have used the APR [problem] -an annual rate just below 18.95%- which would result in a month;y rate of 1.4566% and then truncated the monthly rate " so not to confuse the customer". That is why I wanted to check what monthly rate they applied from day one.

 

The table is very curious. It purports to be interest rates for cash advances but there is a purchases column shown. There is nothing to show whether the rates are annual rates or APRs. The 5th column are true APR figures with a base rate of 18.9% + handling fees. Is 18.9% then the annual rate and therefor the monthly rate should be 1.4531 as above.

 

The Ts & Cs are certainly a mess and extremely confusing but unless you csn show that they have charged a monthly rate higher than 1.4531% I would doubt that a judge would let you say that they do not contain the prescribed terms. After all you would be trying to convince him that the prescribed term were not correct when they seem to be in your favour

 

You could certaily tie them in knots with interest questions on the Ts & Cs document. If you write to them make absolutely sure in your letter that you do not concede that they can be read with the appliction form but that you want some general informatiom about the interest rates charged

 

Otherwise you are back to the very good defence that they have only sent an application form which does not contain the prescribed terms and does not refer you for this information to any other document,

 

I personally would wait for their reply - presumably you are in no hurry.

Edited February 2, 2009 by pelham9
Wrong figure