Help With Cap One And Mbna And Rbs

[leedoe]

Hi i recently sent off for copies of my agreements with these companies cca section78 .I have posted up replies from cap one and mbna no response from rbs they are now well over the time allowed to reply.Any advice regarding my next move would be appreciated thanks. Doc2.pdf

 

Doc3.pdf

[leedoe]

Anyone help with this?

[creditcardmug]

Hi doc2 looks enforceable im afraid.

Doc3, is only a letter,(they are correct in that they dont have to supply a copy of the DN under s78). Can you post up the "agreement"?, how old is the cap1, they don't normally have proper agreements

[leedoe]

[leedoe]

This was the agreement cap one sent.Regarding mbna i noticed that on the bottom of the 3rd column it states"if your application for a credit card is approved....."Does this not make this an application form? or am i just clutching at straws also what should my next move with rbs be ?.cap 1 is from about 04 or 05 .Any advice appreciated.

[creditcardmug]

I don't think you have anything to worry about with cap1, they have just photocopied that from something straight out of the stationary cabinet, it has nothing to do with anything you may have signed,

[Monty2007]

Dear leedoe

 

The MBNA document is a terrible copy, I would take a look at other threads and look to see what cases have been won. They may produce a better copy and it looks to have the prescribed terms.

 

The Cap1 document looks to be a copy of an agreement and they are clearly trying to fob you off with a true copy that has no signatures which they seem to get away with under S78. When did you open these accounts?

 

Again, look at the Cap1 threads and get a feel for their style and what they have provided to others.

[leedoe]

Hi Monty mbna was taken out Jan 06 cap 1 was 04 or 05 should i send rbs and cap one a account in dispute letter? and if so is there a template i could use?Also on the mbna document on a couple of parts on the 3rd column it says it is a application form does this make any difference? or can an application form also be an agreement? thanks

[Monty2007]

Hi Monty mbna was taken out Jan 06 cap 1 was 04 or 05 should i send rbs and cap one a account in dispute letter? and if so is there a template i could use?Also on the mbna document on a couple of parts on the 3rd column it says it is a application form does this make any difference? or can an application form also be an agreement? thanks

 

The banks tended to get their agreements sorted out during 04/05. The mbna one looks like an agreement to me although it is a poor copy. I would suggest that you look at the other mbna threads and get a feel of what others have done with respect to this bank.

 

Looks like Cap1 have just sent you a current agreement, they have therefore fulfilled their obligations under S78(1) since they don't have to send the actual doc.

 

I would imagine given the dates that both would be enforceable, have they defaulted you?

 

Yes, an application form can be an agreement, it must contain all the prescribed terms though.

[leedoe]

Thanks should i now send a SAR request to cap1? Regarding RBS should i send them an account in dispute letter?Ithink they probably have sent me defaults as i have been in a dmp for 2 years.

[leedoe]

Any advice someone

[MARTIN3030]

Yes with RBS you can send that.

Nothing to stop you from the SAR to Cap 1 either.

 

Monty-its not strictly the case that agreements were generally upfront in 2004/2005-for many they didnt get it right until 06/07

[42man]

I'd agree with Martin.....the agreement looks to me like it hasn't been executed, and i'd suggest although it has the prescribed terms unless there is a box they have left off ?.....it does of course depend on how a judge sees it too.....Interesting what they say about the default....send this SAR - I did hear of one case recently (on these forums) where the judge threw out the claim as they could not provide any proof of postage of the default notice.

 

You should send a £10 postal order with each one and address it to the Data Controller at each company:-

 

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

If you are unable to provide any of the above copies in anyway shape or form and unless you confirm otherwise, I will take it that the documents are not able to be reproduced

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

 

sign your name but put crosses through it so it can't be 'lifted'

[Monty2007]

Yes with RBS you can send that.

Nothing to stop you from the SAR to Cap 1 either.

 

Monty-its not strictly the case that agreements were generally upfront in 2004/2005-for many they didnt get it right until 06/07

 

Sorry to nit-pick but I actually stated:-

"The banks tended to get their agreements sorted out during 04/05".

I have had a look at almost all credit agreements on CAG over the past two years. Generally speaking, the credit agreements post 05 are more likely to be enforceable than those pre 2004 and other CAG members are also of this opinion but you are more expert than me so I stand corrected.

I personally believe that doc 2 is enforceable since it contains the prescribed terms. Certainly it is not like many pre-2004 documents which are mostly application forms purporting to be enforceable agreements.

There clearly is a substantive difference and the OP needs to look at CAG threads for both banks which have been legally challenged and then make a more informed decision as to how to proceed. I am also aware that the OP has been issued with a writ from another creditor in a Sheriff court, however that one looks winnable.

[MARTIN3030]

Fair comments Monty.

Lets see what SARs turn up.

[leedoe]

Thanks to all of you for advice.So i put rbs in dispute and send sar requests to mbna and cap one is this correct?

[leedoe]

bump

[IdaInFife]

I can read the mbna agreement and on magnify as well ( normally quite bad on my comp) do you think there could be any charges on this that could be claimed back? if so then send an SAR as imo would be enforceable.

 

I would rather hold off with cap1 and RBS and try to get them to confirm if they have a valid cca first before sending £10 to them

 

I would send to them both:

 

Account In Dispute

Ref:

Dear Sir/Madam

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. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.(12+2 days after you sent the CCA request)

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.

Furthermore

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

This limit has expired

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

Therefore this account has become unenforceable at law.

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

Please note you may also consider this letter as 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.

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 not respond within 14 days I expect that this means you agree to remove all such data.

Furthermore you should be aware 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 as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully,

 

 

ida x