TOTO vs MBNA

[toto003]

Although I have sent a s77/78 CCA Request recently. I found this in my files:

This application was made before the 31st Dec 2004 in an online application.

 

 

See link here for copy on file:

http://i42.tinypic.com/2iu6xdc.jpg

Edited February 6, 2009 by toto003
removed embedded pic and replace with link

[Fred Bassett]

It will be very interesting to see what MBNA come up with and how it compares to this. Don't whatever you do let them know about this.

 

Regards.

 

Fred

[toto003]

Well, it turns out I did sign some paperwork, as I have now been sent a signed copy of an agreement.

 

Can someone please tell me if this is enforceable ? or even valid ?

 

It was sent as a double-sided photo copy, so "could" be from the same piece of paper.

 

First:

http://i40.tinypic.com/10fs137.jpg

 

and (alleged) Reverse side

http://i42.tinypic.com/fjnudd.jpg

 

Thanks in advance.

 

They also sent a copy of my current terms and conditions.

 

toto

Edited February 6, 2009 by toto003
corrected some grammar mistakes

[Josie8]

Well, it turns out I did sign some paperwork, as I have now been sent a signed copy of an agreement.

 

Can someone please tell me if this is enforceable ? or even valid ?

 

It was sent as a double-sided photo copy, so "could" be from the same piece of paper.

 

First:

http://i40.tinypic.com/10fs137.jpg

 

and (alleged) Reverse side

http://i42.tinypic.com/fjnudd.jpg

 

Thanks in advance.

 

They also sent a copy of my current terms and conditions.

 

toto

 

 

This is a standard MBNA cut & paste. It will be up to individual judge whether enforceable or not. Have they defaulted you? If so lets see default notice as usually invalid

[toto003]

This is a standard MBNA cut & paste. It will be up to individual judge whether enforceable or not. Have they defaulted you? If so lets see default notice as usually invalid

 

Hi Josie,

 

thanks for the reply, no it isn't defaulted. I only stopped making payments in the last 6 weeks.

 

My main point with this agreement, is that the credit limit is stated as £30,000 - which in November 2004 (when the agreement was made) is 5k more than the limit applied by the Consumer Credit Act at the time.

 

It isn't a limit increase after a lower limit was agreed.

 

I have asked here and in the legal section, but no one seems willing (able?) to explain what the implications of that are.

 

My understanding (hope?) is that the entire agreement is void, as it falls outside the limits imposed by the very act it claims to be regulated by.

 

I know I am not the only one in this position.

[Fred Bassett]

Toto,

 

The 2nd page of the MBNA form is very hard to read, but how does it compare to the Virgin application - are the APR figures the same?

 

Fred

[toto003]

Toto,

 

The 2nd page of the MBNA form is very hard to read, but how does it compare to the Virgin application - are the APR figures the same?

 

Fred

 

nice idea,

 

unfortunately, all APRs are the same- even the wording is almost exactly the same. (I have only found one tiny deviation from the copy I had on file)

[Josie8]

Hi Josie,

 

thanks for the reply, no it isn't defaulted. I only stopped making payments in the last 6 weeks.

 

My main point with this agreement, is that the credit limit is stated as £30,000 - which in November 2004 (when the agreement was made) is 5k more than the limit applied by the Consumer Credit Act at the time.

 

It isn't a limit increase after a lower limit was agreed.

 

I have asked here and in the legal section, but no one seems willing (able?) to explain what the implications of that are.

 

My understanding (hope?) is that the entire agreement is void, as it falls outside the limits imposed by the very act it claims to be regulated by.

 

I know I am not the only one in this position.

 

 

I see what you're getting at. Yes £30 k is in breach. Creditor cannot argue unregulated agreement as they have entered into a regulated agreement with you.

[toto003]

First Draft of dispute letter. - comments welcome pls.

 

 

(Date)

(My address)

 

 

(Their address)

 

Thank you for your response dated [Date], my earlier formal request for a true copy of the original credit agreement for the above account under the Consumer Credit Act 1974 (Sections 77-79).

 

The documents you supplied are not a satisfactory response to my request;

(i)The most important documents are not clearly legible. (Your prior acknowledgement of this is also noted)

(ii)The Prescribed term relating to Credit Limit does not comply with the Act that it claims to be regulated by.

(iii)Nowhere on the front of the document is there any reference to remaining required prescribed terms and conditions that such an agreement must contain.

(iv)Without said reference, one must assume that these are unconnected documents and once again inadequate to satisfy your obligations.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested documents. This deadline has now passed and I have not received the requested documents from you.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable & I therefore consider that this account is in dispute with immediate effect & it follows that all payments to this account are suspended forthwith.

 

 

Further, the implications of including terms that are incompatible with the statutory limits outlined within legislation, raise several serious questions, not least is whether such a company should be entitled to hold a consumer credit licence for committing such a clear breach.

 

I draw your attention to the legal requirement that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:

You must not demand any payment on this account, nor am I obliged to offer any payment to you.

You must not add any further interest or charges to this account.

You must not pass this account to any third party.

You must not register any information in respect of this account with any of the credit reference agencies.

You must not issue a default notice on this account

I hereby give you notice that if you proceed with any of the above actions, I will file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.

 

As you are aware you are obliged to provide me with a true copy of my agreement as defined under Section 189 of the CCA 1974. I consider that you have failed to comply with my request for these documents.

[atwozee]

This is a credit card isn’t it?

What was or is the credit limit on the statements?

[toto003]

This is a credit card isn’t it?

 

What was or is the credit limit on the statements?

 

yes, it is a credit card.

 

Initial agreement and credit limit were 30k (seen tinypic links above).

 

The Limit has never been anything other than 30k [and every statement states 30k as limit]

[atwozee]

I suggest you contact the OFT – this agreement cannot be regulated under the Consumer Credit Act 1974 because as you say it is outside of the financial limits imposed on the time.

To say it would be enforceable would be like saying there wasn’t a financial limit when clearly there was.

Why don’t you contact Bradley Say – I’m sure he would have an opinion on it – not sure he would give it without charging a fee though.

http://www.goughsq.co.uk/bradleysay.htm

[toto003]

I suggest you contact the OFT – this agreement cannot be regulated under the Consumer Credit Act 1974 because as you say it is outside of the financial limits imposed on the time.

 

To say it would be enforceable would be like saying there wasn’t a financial limit when clearly there was.

 

Why don’t you contact Bradley Say – I’m sure he would have an opinion on it – not sure he would give it without charging a fee though.

 

http://www.goughsq.co.uk/bradleysay.htm

 

 

 

Thanks, I will do that tomorrow and see what I can find out.

[rmart]

I was really interested to find this thread as my 2 daughters have a similar problem.

 

They took out a Northern Rock Together Mortgage. The mortgage was for £92,000 and the personal loan part was for £28,000 although it was presented to them as a 'Fixed Sum loan agreement regulated by the CCA 1974'

This was take out on the 17th November 2006 so clearly was not regulated by the 1974 CCA. I am trying to find out if the agreement has any validity?

[toto003]

Hi Rmart

 

The consequences for agreements "executed" on regulated paperwork differ between credit cards and loan agreements.

I suggest you subscribe to the more general thread I created

 

here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/178390-credit-agreements-over-25k.html

 

as I will be updating it with more general information that will cover all types of agreements.

[chez262]

Hi Toto,

 

I'm interested to know what happened with your case.

 

I've read your other post and commented in regard to my own situation (just to add fuel to the fire)

 

Upon doing this I have noticed there could be 3 possible outcomes,

 

1. The agreement is continued as unregulated.

2. The agreement becomes regulated as the amount is inconsistent with a provision for the protection of the debtor and therefore a void term.

3. The agreement is void as it claims to be regulated but the regulations state the limit is exceeded.

 

Which of these did you argue and which, if any stood ground?

 

Thanks.