Advice on 2 CCAs please

[summerbreeze]

Hi

I need advice on 2 x ccas from MBNA . They are old cards from 1996 and 1998.

I got 2 different letters and copies of what looks like the application forms and then some old T and C on a seperate sheet. One of the T and c sheets is partly illegible and is referred to as such in the covering letter that came with it .

 

I have scanned them but the scans are quite hard to see I think but please try to look at them for me .I would really appreciate it

Edited February 9, 2009 by summerbreeze

[DocH]

Hi summerbreeze, welcome to the site.

 

I'm afraid the images are way too small. Can you post them on photobucket and link them here? If you've not used photobucket before here is a quick guide, post 15 in this thread:

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[summerbreeze]

This is the second one

Edited February 9, 2009 by summerbreeze

[summerbreeze]

Hi

Ok I will try the photobucket

1st set

 

 

This still isnt working

Edited February 9, 2009 by summerbreeze

[summerbreeze]

.jpg Edited February 3, 2009 by summerbreeze

[summerbreeze]

here goes again

[summerbreeze]

oops:

 

:

 

 

:

Edited February 9, 2009 by summerbreeze

[summerbreeze]

Edited February 9, 2009 by summerbreeze

[cerberusalert]

By what I can see it is an application. It even says on the top of the page; "Please supply the following information so we can set up your account with the highest credit limit possible". It doesn't include the prescribed terms; credit limit, repayment terms or APR.

 

The second is the same except it states "Application Form".

[Pinky69]

To paraphrase them, for the avoidance of doubt, these are purely and simply application forms. Chancers!

[summerbreeze]

They are hounding me over these cards even though I have told them I am being advised by CCCS

[cerberusalert]

Send the idiots the following;

 

Thank you for your response to my letter dated xxxxxx 2008, making a 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 me appear to be no more than an application form, and as such are not a satisfactory response to my request. Nowhere on the front of the document is there any reference to the prescribed terms and conditions that such an agreement must contain. I must assume that these are unconnected documents and once again inadequate to satisfy your obligations.

 

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. and I consider that you have failed to comply with my request for these documents

 

 

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.

 

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.

 

Yours faithfully

[summerbreeze]

Thank you for all your help with these CCAs

I am sorry to sound so thick but I just need to understand what I am doing.

Should the prescribed terms be included on the front page that I have signed ?

Might MBNA say that the terms were on the reverse of the page ?

Would that make a difference?

 

Looking at the first page and then the T and C pages the reference numbers do seem to be in different handwriting ...does that help me ?

 

Because some of the T and C are so illegible and blurred I cant make out what they say.

I am just afraid to fight them if theres a chance the CCAs are enforcable.

 

Thanks for all support and help

[cerberusalert]

The prescribed terms should be within the four corners of the signature page.

 

It is not a 'credit agreement' it clearly states that it is an application.

 

Do not be frightened to stand up to them, that is exactly what they are relying on.

[summerbreeze]

The prescribed terms should be within the four corners of the signature page.

 

It is not a 'credit agreement' it clearly states that it is an application.

 

Do not be frightened to stand up to them, that is exactly what they are relying on.

 

Thank you !

 

I think I am so worried because between these 2 cards and a loan I have also with them [ they cant find the CCA for that one ] it adds up to a VERY large amount of money.

My circumstances have changed so drastically and I am not used to being in this position

[Pinky69]

Neither are millions of others now - join the club - and you will get all the support you need here to assert your rights.

[frettful38]

Here here!!!!!!!!!!!

[cerberusalert]

I think I am so worried because between these 2 cards and a loan I have also with them [ they cant find the CCA for that one ] it adds up to a VERY large amount of money.

 

Due to the various financial institutions innate greed they forget one of the basic principles of economics.......make sure a contract is watertight! They didn't & now they are reaping the consequences.

[DocH]

I'll third that

 

To try and ease the worry, ask yourself what is the worst that can happen to you?

 

You could get taken to the County Court (which sounds frightening, but is in fact fairly informal and the hearing takes place in the judges office) where if you lose your case a CCJ is awarded against you. The judge will never order you to pay more than you can afford. If you're on a DMP, it is very unlikely that the repayment of the CCJ will be any more than you are paying at the moment.

 

However, with the dodgy CCA's you've got then you should win with the help and support of the wonderful people on this site.

[summerbreeze]

Thank you all for those kind and reassuring words

[banker_rhymes_with]

Hello Summerbreeze!

 

Many thanks for the PM, sorry for the delay responding, am a bit busy with a case of my own at the moment!

 

Firstly, you have been getting some good help already, so all I can do is add to that.

 

The first thing to mention is that neither of the alleged Agreements appear to be fully readable. In that case, then they have yet to comply with your s78(1) Requests.

 

See: Consumer Credit Act (1974) and related Regulations

 

The PDF you need to read is in the Section near the bottom of the page and entitled More Regulations. The PDF is number 3, and when you open it, it’s entitled (at the time of writing, the PDF Title is truncated so is hard to spot, but the PDF you need is number 3):

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

1 Citation, commencement and interpretation

 

(1) These Regulations may be cited as the Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 and shall come into operation on 19th May 1985.

 

(2) In these Regulations--

 

"the Act" means the Consumer Credit Act 1974;

"Agreements Regulations" means the Consumer Credit (Agreements) Regulations 1983 and any reference to any

provision of those Regulations includes in the case of modifying agreements which are, or are treated as, regulated

agreements a reference to Regulation 7 of, and the appropriate paragraph of Schedule 8 to, those Regulations;

"cancellable agreement" includes an agreement which is a modifying agreement treated under section 82(5) of the Act

as a cancellable agreement; and

"lettering" includes figures and symbols.

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/2 Legibility of notices and copy documents and wording of prescribed Forms

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act without any alteration or addition, except that -

 

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed by these Regulations; and

 

(b) every Form shall be completed in accordance with any footnote.

 

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced in addition to any such Form.

 

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

 

Thus, if you cannot read what they have sent, then they have not complied with your Request. If the Card Agreements are still current, then this means they are constrained from taking any Enforcement action because of s78(6) of the Consumer Credit Act 1974.

 

The alleged Agreements are clearly just Application Forms, but MBNA want you to think the Terms they have also sent were part of the same Application Forms (i.e. the back page of the front).

 

The reason for this is because they know full well that for a Court to regard the Application Forms as Agreements, the absolute minimum they will need to have is an original document bearing your Signature and the Prescribed Terms, all contained within the four corners of it.

 

In theory, if MBNA do have a two-sided document, with your Signature on the Front/Application Side, and the Prescribed Terms on the back, then a Court would Enforce it.

 

Unfortunately for MBNA, if they don't, then a Court is precluded from Enforcement when dealing with alleged Agreements covered by the 1974 Act (which both of yours are), by virtue of s127(3).

 

If all MBNA have are copies, and unreadable copies at that, then they are in a very difficult position. If the copies are unreadable, then they are stuffed, because the copies will always be unreadable.

 

If the copies are readable, or if they have better copies somewhere, then MBNA may try to link the two copies and may try to convince a Court the copies are the Front and Back of your alleged Agreements.

 

As I cannot read them, I cannot really say if these are linked at all. They've scrawled a reference in biro on both, and they seem to match, but when was that added?

 

MBNA will need to produce some stunning evidence that links these scans.

 

Here's some bumf I've written elsewhere that covers the issue of Copy Agreements in place of the Original Statutory Document:

 

They should have the original Agreement if it was originally a written Agreement.

 

See CPR PD 16 7.3

 

See also the opinion of the Chief Executive of the Office of Fair Trading:

 

Letters from DTI /Oft Regarding CCA1974 Issues – Post #49

 

The bottom line is, if the bank has been foolish enough to lose or destroy a Statutory Document, such as a written Regulated Credit Agreement, then they have lost the hard evidence of what was, or what was not, contained within the four corners of that Agreement.

 

If they only have a copy, then what they have is not hard evidence, it is classed as Hearsay Evidence. IOW, something that carries a much lower weight in terms of using it as evidence in comparison to the real thing.

 

A simple copy Certified by a banker should be quite low on the scale of being taken seriously by a Court. Sadly, many Judges need to be reminded of this fact.

 

The current financial turmoil and the dubious practises of banks that are now coming to light, is ample evidence that banks are no more trustworthy than any other business...arguably less so because they deal with money.

 

Hearsay Evidence is covered by The Civil Evidence Act 1995 (CEA-1995). This sets out the considerations when copy evidence is to be submitted as Hearsay Evidence in place of the original hard evidence that the bank should have retained (if it had any sense). Always suspect that the bank may well have lost the original to hide what was not actually there originally.

 

For a copy written Agreement to be given a stronger weighting as evidence, then the bank should be made to present suitable evidence that tracks the complete history of the document from original, to copy, to destruction, to archive, and to cover every event when the copy has been re-copied, re-produced or potentially edited.

 

With this in mind, it is only reasonable to expect the bank would have a suitable Document Management System, one that is audited in some way to verify that the logs cannot be edited, deleted or manipulated.

 

Something along the following lines:

 

The Legal Admissibility of information stored on Electronic Document Management Systems

 

Hearsay Evidence backed up with hard Document Management System evidence is likely to be taken seriously...but not as seriously as the original. The fact remains that Hearsay Evidence is not the original, so can never match that in terms of its weight as hard evidence.

 

The task is to present the above to a Judge in such as way that the Judge does not simply accept a dubious copy of an alleged Agreement, just because it has been stamped by a banker saying it is a Certified Copy. Likewise, a Judge should also be aware that a Witness Statement by a banker claiming the copy is a copy of the original should not be taken seriously simply because a banker claims to know about the alleged Agreement without elaborating on why they feel they are in a position to say this. Just being employed by the bank in question is not good enough.

 

Many Witness Statements by bankers claiming to know about an alleged Agreement would not stand up to close cross-examination if the banker is asked probing questions about their time at the bank, which departments did they work within and when, and where are the logs bearing their signature to confirm they were involved with the alleged Agreement all the way from draft, legal consultation, artwork brief, artwork checking, artwork signing off, authorisation to Print on Press, cross-checking original brief with the Printed material coming back from the Press (to make sure there were no Printing Errors such as forgetting to print the Terms on the rear page for example), receipt of Stocks of the blank Agreement at the bank, stocking/security of the blank Agreement, collation of the blank Agreement for despatch to the Consumer (cross-checking that the correct Agreement was sent), Despatch/Posting of the alleged Agreement to the Consumer, booking in/receipt of the completed alleged Agreement from the Consumer, inspection of the alleged Agreement from the Consumer, credit checking of the Consumer before Authorising the Agreement, Execution of the alleged Agreement by the bank, storage/security of the executed alleged Agreement by the bank, authorisation to Copy the executed alleged Agreement by the bank, method of Copy by date/employee/equipment, archiving of Copy or Copies of the alleged Agreement (copies will be plural if it is a two-sided Agreement), authorisation to shred/destroy the original alleged Agreement...then a complete history of the copy/copies from Scanning/Copying until the present day.

 

Now, you have to ask, would it not have been simpler to retain the original?

 

Never, ever, trust a bank that cannot produce the original alleged Agreement. Force them to validate the Hearsay Evidence copy, and do not let them get away with wishy washy Certification Signatures or dubious Witness Statements made by people who were not actually a Witness to the complete history of the copy document(s) in question.

 

Another issue with MBNA, especially from around that time, is they did cock-up the Prescribed Terms. A common mistake was on the Minimum Payment Prescribed Term, as MBNA used to add a series of exception clauses to them...i.e. exception clauses that were to be found within another Document!

 

That stuffs them, as the Prescribed Terms cannot be found in another Document...they must be contained within the four corners of the Agreement.

 

I can't read the Terms but, if you can, see if you can see anything that states if clauses apply to the Minimum Payment. If they do, then apart from anything else, it does not then satisfy s61(1)(a), so cannot be Enforced because of s127(3). Thus, even if MBNA pull the original Agreement out of their backside, they are still stuffed.

 

Finally, did your MBNA Loan have any PPI?

 

If so, one very good reason why they have not produced the Agreement for that could be because they know the Agreement is Unenforceable because of s18 Multiple Agreements. In all likelihood, MBNA did not set the Agreement out to cover the two types of Credit, as each would need its own Prescribed Terms in terms of Monthly Payments etc. If they stated just one for the whole Loan+PPI, then they'll be stuffed on that too.

 

MBNA are a slippery bunch to deal with, but are mostly mouth and no trousers. Their usual tactic is to threaten and bully for as long as possible, after which they'll sell the alleged Debt on to a DCA for maybe 4.5% or 5.0% of the amount they say you owe. With Credit Cards, they will also ramp up the Interest Rate whilst they do the threatening and bullying, because they want to get the alleged Debt inflated as much as possible to:

 

(A) Increase their Tax Write Off when they sell.

 

(B) Inflate the actual Payment they'll get from a DCA when they sell.

 

In my case, they ramped up an alleged Debt of around 16k to over 22k during the time they were engaged in Harassment activities. Clearly, 5% of 22k is better to them than 5% of 16k. Likewise, take off the 5% to create their Tax Write Off, and 95% of 22k is far better than 95% of 16k.

 

Shame in my case MBNA could only come up with an unreadable Agreement and, even if they had produced a readable copy, the Prescribed Terms were flawed rendering the alleged Agreement unenforceable anyway (I have a perfect copy of it on file).

 

I think HMRC should investigate these activities, because in my case alone, they are now in a position to Write Off a significant virtual sum against Tax, all based on an alleged Agreement that was never enforceable anyway! Money for nothing as they say.

 

To add insult to injury, over the life of the Card, I have paid them around 5-6k more than I've ever spent. So, in hard cash terms, they are ahead. Add to that the close on 21k they get to Write Off against income/Tax from other activities, and they cannot say things have not turned out rosy for them overall...well, that's until I come gunning for them for the refund of the over-payments including the 1k+ of Unlawful Charges plus a Claim for all of their nasty Harassment and multiple breaches of the OFT Debt Collection Guidelines! Or until they make the mistake of coming for me...which is already too late as they've sold the Debt anyway to a pond life DCA who I think realises already they've bought yet another dud from MBNA.

 

I'm only sad that I didn't start fighting them much, much earlier.

 

I hope this helps.

 

Cheers,

BRW

[summerbreeze]

Thank you so much BRW

Here are a few points

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

This is definitely NOT the case

I let my 18 yr old daughter who has perfect eyesight look at the Tand C .. Both sets are hard to read and the T and C for the Gold card is illegible in a few places

 

The alleged Agreements are clearly just Application Forms, but MBNA want you to think the Terms they have also sent were part of the same Application Forms (i.e. the back page of the front).

 

On the Gold card I can just read a part where it states 'I accept and agreee to be bound by the MBNA conditions of use [ as set out overleaf and as amended from time to time ]

So I think they are hoping I will believe they have the original 2 sided document. If they do why is the back so much more difficult to read than the front?

 

As I cannot read them, I cannot really say if these are linked at all. They've scrawled a reference in biro on both, and they seem to match, but when was that added?

 

They do have the same ref number scrawled on both pieces but they seem to have changed pen types in between writing on each side. The front is written in what looks like a fine marker type pen and the T and C in a fine biro type pen.

 

Another issue with MBNA, especially from around that time, is they did cock-up the Prescribed Terms. A common mistake was on the Minimum Payment Prescribed Term, as MBNA used to add a series of exception clauses to them...i.e. exception clauses that were to be found within another Document!

 

That stuffs them, as the Prescribed Terms cannot be found in another Document...they must be contained within the four corners of the Agreement.

 

On the Platinum card T and C

I can read ' The minimum payment shown on the statement will be the greater of

[a] 2% of the account balance as shown on the statement or

£5 or the account balance as shown on the statement if less than £5

 

except as mentioned in conditions 9.4 , 10.5 and 10.6

 

there isnt a condition 9.4 , 10 .5 or 10.6 on the T and C

Also in other parts of the T and C there is a mention of condition 9.1 , 9.4 , and 14.1 and these arent there either in fact the last condition on the T and C is condition 12

 

BUT

There is a paragraph above condition 1 that says

Set out in paragraphs 1-12 below are some of the provisions contained in conditions 8 and 9 of the MBNA credit card terms and conditions . The other conditions referred to in those paragraphs and the applicable definitions can be found in those terms and conditions.

AND

On the front of this Platinum application form in the paragraph above ' your right to cancel it says

' I have received a copy of and agree to be bound by the MBNA credit card terms and conditions.'

 

Does this cause a problem for me ?

 

Also on the T and C for the Platinum Card the interest for retail transactions is only quoted as a monthly figure but Cash advances is quoted on an unreadable table but in APR form.

 

Please would you let me have your comments on these points .

I am continuing to read and digest the other legal documents you have quoted and I thank you most fervently for your help.

Edited March 17, 2009 by summerbreeze

[summerbreeze]

sorry I forgot this one

 

Finally, did your MBNA Loan have any PPI?

 

No my loan did not have PPI

I was self employed and was aware just how virtually impossible it is to claim on PPI when you are self employed

And yes they have ramped up the interest on my Credit cards to 34.6%

[car2403]

If the prescribed terms can be read on the T&C's, they will need to show they are part of the same document.

 

If they can't show that, the T&C's aren't part of the same document, which will include the presribed terms, meaning the agreement is irredeemably unenforceable. (As it doesn't contain the prescribed terms)

 

If they can show that, the agreement will be enforceable.

 

The only way to know is to get them to confirm in writing whether these 2 are part of the same document/agreement. From what I've seen, it's unlikely this will be confirmed in writing.

 

If that is the case, the only way to force their hand is to take proactive Court action to have the rights and obligations of the parties to the agreement declared by the Court, in that you can make an application, requesting the agreement to be declared unenforceable because of it's unlawful construction under the CCA, under s.142 CCA 1974.

 

The problem with doing that is that they **may** turn up with the agreement and the Judge determines it is part of the same document/agreement and enforces the debt. That could result in costs being added to the debt and having the whole lot enforced against you.

 

From experience on here (I don't have this issue with this company, but many others have, if you care to read the other threads on the forum) it seems very unlikely this would be the case, however. It would be worth reading the threads of others in the same position, though, as this company doesn't give up easily without putting up a formidable defence - only a claimant with sufficient experience and knowledge, with the support of CAG, would find themselves unpertubed by it all, IMHO.

[WelshMam2009]

Thank you !

 

I think I am so worried because between these 2 cards and a loan I have also with them [ they cant find the CCA for that one ] it adds up to a VERY large amount of money.

My circumstances have changed so drastically and I am not used to being in this position

 

You're not alone....I used to have a well paid job and owed £90k.

 

I know owe £45k but am unemployed due to ill health!

 

Life's a bitch but the CC companies are even bitchier!!

 

PS..I am about to CCA MBNA and am expecting the same pre-contractual document. They will argue the toss with you though as I've read on other MBNA threads here...