BeneVMint-Help Really Needed!

[Bene]

Hi everyone

 

Having been reading threads on this site, which I have found to be an outstanding source of information and support, I decided to CCA one of the credit cards I have.

 

It is with Mint RBS and there is an outstanding balance which is up to (mailnly minimun payments) date except for the last months after I CCA'd them and didn't hear back.

 

I have just received mail in the post this morning from Mint enclosing, what they consider a copy of my original agreement with accompanying t&c's.

 

To me it doesnt look like they contain the correct prescribed conditions but I'm a little confused because there is reference to some prescribed conditions with the t&c's but they look like they are all on seperate pieces of paper and they could well be their current t&c's.

 

I'm sorry to waffle but I'm a bit stuck as to what to do next without knowing whether they have conformed to my CCA request or not.

 

I have attached scannedd images of exactly what I receivd this morning for anyone to take a look at.

 

I would really appreciate some help from anyone who knows so that I can decide on the next course of action.

 

Really appreciate everyone's time, thanks.

 

BeneMint CCA.pdf

[Surfer01]

Looks almost the same as my MINT application except the header and it does not contain prescribed terms, i.e. the amount of credit available of the card etc.

[Bene]

Surfer01

 

Thanks for yor reply. I agree that there are no prescribed terms in the agreement but there are in the accompanying t&c's? Where does that leave me?

 

Bene

[blueda]

That letter is a complete load of bluff, its like they want you to supply CCA, I would send the follow up letter telling them that they are in default, and that you are stopping payments until a valid CCA be supplied. Someone will be along more experienced to advise you further.

[Bene]

Bumping.

 

Can anyone else have a look over the CCA I have received from Mint. I really am confused that because there are prescribed terms in the T&C's that this may make the agreement enforceable.

 

Can anyone with more experiece help me out?

 

Bene

[42man]

It looks like an application form to me...AND it doesn't seem to have a box where the creditor is able to sign, therefore it looks like an unexecuted agreement....the terms look to have been copied from a totally separate document too, if defined with this case law....

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

If you're not afraid to stand up in front of a judge and argue the points....

[Bene]

Thanks 42Man.

 

I agree that the terms look completely seperate from the application form/agreement and, therefore, are not "within the 4 corners of the agreement", rendering the whole agreement unenforceable.

 

However, it is quite ambiguous because the form is classed as an application form but also says that it is a credit agreement. There is also an RBS Advanta stamp on the top right, would that not constitute their signature?

 

Either way, the prescribed terms do not seem to appear in the application/agreement form I think making it unenforceable.

 

What would be the next course of action or letter to send to them in your opinion?

 

Bene

[42man]

You could edit this and send it, but whatever you say they will probably argue that they are correct....what this boils down to is how a potentially uneducated (as in uneducated to the Consumer Credit Act and High court Law) judge would perceive it.....and how you could argue it in court....if you feel confident enough to do this (and bear in mind judges vary wildly !) then you could continue to fight this.....but don't forget non compliant defaults too..!!

Account in dispute

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any prescribed terms and the fact that the application is unexecuted means that a court would be prevented from enforcing it under s127(3)"

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request and I am therefore advising that the matter is now in dispute . Whilst the matter is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else.

 

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[Bene]

I guess if I stopped paying them because the account was in dispute they could default me, we could then go to court, hopefully I would win and then I would have to fight to get the default removed. Either way, my crefit record is likely to be adversely effected for some time. When would you consider perhaps making a full & final and hopefully getting them to agree to the account being settled in full?

[42man]

You could do that, but make sure that ANY F & F is IN WRITING...

[Bene]

Hi guys

 

Having amended 42mans excellent letter to Mint, I have received another letter from Mint (attached). Not sure if many people have had this reply before and I'm unsure as to what to do next. I'm confident that the CCA they have sent me is an application form, does not have prescribed conditions on it and has nowhere for Mint to sign making it improperly executed. Can somebody take a look and give me some ideas??

 

Thanks in advance.

 

Bene

Mint Letter.pdf

[Bene]

Bumping, anyone with any ideas/help??

[pebsham]

Basically it's Mint's standard reply to anybody that challenges their "Application form". You have to decide whether you will continue with it or agree a payment plan.

 

Basically you have an unexecuted, uneneforceable pre-contractual application for a credit card.

 

If you feel up to the challenge of going through the hands of several DCA's (yes they will ignore that the account is in dispute) you will find all the help and support you need on here.

 

Next step for you I guess is to send an SAR to Mint and check for unlawful charges on your account. This will then mean that any default isused etc is incorrect and you can persue that as well.

 

I'm in a very similarr position to you but I had paid over £6000 back to Mint due to threats and intimidation before I found this site realises what my legal rights were and started fighting back.

 

Stick to your guns but as everybody on here always says NEVER talk to them by telephone insist on written contact only.

 

Keep us posted

 

peb

Edited February 25, 2009 by pebsham

[Bene]

Peb

 

Thanks a lot for your reply. Did you mean that the application I have is enforceable or unenforceable?

 

Regards

 

Bene

[pebsham]

Sorry about that your application form appears unenforceable under CCA 1974 it doesn't appear to have all the prescribed terms "within the 4 corners".

 

So it's now up to you really how you proceed

[Bene]

Hi guys

 

On Friday I received the attached default notice and I'm now really worried about what to do next. The default is dated 9 March but I didn't receive it until the 13 March, I kept the envelope but it was posted business post so no date mark on it. Could somebody please have a look at the default and see if it is issued correctly. I imagine that there are lots of penalty charges in the total amount due and since I firsted started this with Mint they have disputed that the account is in dispute and have kept adding the monthly interest. Should I do an SAR, would that give me more time to put off the default? What are the consequences of the default?

 

I'm really concerned about this now so any help would be really greatfully received.

 

Thanks

 

Bene

Mint Default Notice.pdf

[cosalt]

Hi Bene, do you have the envelope?

 

When you received it is irrelevant, it will be assumed it was posted on the date of the DN. If it was sent 1st Class it is deemed recieved 2 working days after postage and 2nd Class four working days.

 

From that date there should be fourteen clear days notice.

 

So if it was sent 1st Class as the 9th was a monday it has given you 15 days notice, if it was 2nd Class only 13 days which is not enough.

 

Also I don't think the wording is correct either, it is the same as my tesco DN. They say you have 17 days from the date shown, yet the only date shown is the date of the DN i.e 9th March.

 

Also does the arrears amount include any penalties? I believe the DN can only have arrears that are actually the missed payments, if these missed payments included charges then it is wrong. I also see you are not much over your credit limit, have you got enough penalty charges on your statements to drop your account below your limit. As your DN states one reason for the default is because you are over your limit, perhaps you wouldn't be if they had not charged you penalties.

 

The DN is very important, especially if the then terminate you ( rbs usually do ) If they terminate on the back of a dodgy DN they don't have a leg to stand on in court.

 

Hope this helps !

[42man]

Also you could try this too... - http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[Bene]

Thanks guys

 

Do you know what the consequences of a default are?

 

Bene

[cosalt]

Thanks guys

 

Do you know what the consequences of a default are?

 

Bene

 

If they register the default with a CRA, it will stay on your file for six years and seriously affect your credit rating. However if the default is wrong, they have no right to do so, although getting it removed is a long hard battle from what I gather.

 

It doesn't really bother me as borrowing money got me into this mess in the first place so I certainly won't be applying for credit again !

 

Your circumstances may be different so think carefully, however as I said above if you dont need any more credit again then I wouldn't worry - a default is not a criminal record !

[Bene]

Is there anything I can do now to stop/delay the default notice going on my account?

 

Was wondering whether I should SAR them or send them another letter saying the agreement is an application form/no prescribed conditions so remains in dispute?

 

What happens after the default notice is lodged on my credit file? Also, I'm pretty sure that the default notice will include late payment penalties, does that make it an incorrect default notice?

 

Thanks for everyone's help.

[Bene]

Bumping.

 

Just wondering if there is anything I can do to stop/delay the defualt by SAR or something else, they dispute the account is in dispute, even though all they have sent me is an application form!

 

Any advice??

 

Bene