Advice on 2 CCAs please

[banker_rhymes_with]

Hello Summerbreeze!

 

Does this cause a problem for me ?

 

No, it shouldn't. As Car2403 has said, MBNA will need to show that all of the extra Terms related to the Prescribed Terms were part of the same Agreement, i.e. contained within the four corners of it (get used to that phrase, as it's important)!

 

There is binding Case History that makes it clear the Prescribed Terms cannot be misstated or found in another Document. Unless every aspect of those key Prescribed Terms are contained within your Agreement (i.e. the four corners of it meaning the physical document that can be two sided or even multi-page) then the Agreement cannot be Enforced.

 

It's potentially possible to have a multi-page Agreement, but for that to be regarded as one Agreement, it would have to be either bound together or clearly linked by Page Numbers...preferably with your Signature right at the end of it to show you've read everything above it.

 

If there's a second Document of Terms, then anything found within that could not be contained within the four corners of the Agreement itself. If the Prescribed Terms or elements of the Prescribed Terms are found only in that 2nd Document, then the Agreement itself cannot be Enforced.

 

I regret that the best strategy with MBNA is effectively to sit back and see what happens. Bide your time and gather any evidence if they engage in Harassment while they thrash the issue out. Log all Telephone Calls, Record them if you take any, Record all Messages, keep all Letters, keep all silly Postcards and KEEP ALL ENVELOPES (to help pin down Date of Service for any important Documents they send such as Default Notices etc).

 

Taking MBNA to Court to have the Agreement(s) declared unenforceable via s142 is an option, but in most cases it's probably not a risk worth taking. That's unless you are 100% sure of the issues and 100% confident of taking it all the way despite fierce resistance from everything MBNA can throw at you.

 

My own tactic was to sit back, gather evidence, and let MBNA thrash themselves to death and make all the mistakes they could. Sure enough, they gave up in the end and then sold the alleged Debt to a DCA.

 

I gave them enough rope to hang themselves with, and they did a fine job it has to be said. Hanging themselves was about the only thing they got right!

 

My own next step is now to take the fight back to MBNA to mop up any Adverse Data they have no doubt left all over my files. I've over-paid them, they've Harassed me and my family quite seriously, and they have damaged my financial reputation. I'm not going to walk away from that.

 

To make things worse for them, they also issued an invalid Default Notice and Sold the alleged Debt before the Statutory 14 Days were up based on the Legal Date of Service of the Default Notice. So, there is trouble heading their way shall we say.

 

Sorting out the mess will not be easy. Had I known earlier on what I know now, I may well have considered going for them via s142, as I now know the Agreement cannot be Enforced. Sadly, hindsight is a wonderful old thing.

 

Finally, WRT your Loan Agreement, shame about the PPI, as that could well have been a useful issue. However, MBNA do not seem to be very good at keeping their Agreements, and the ones they have copies of, are often unreadable. It's quite possible they may not come up with a copy of the Loan Agreement, readable or otherwise. Fingers crossed for you!

 

Cheers,

BRW

[summerbreeze]

Thank you CAR2403 and BRW ..you are truly good people. I admire you both.

 

I think I am not strong enough to take those B******S to court right now so I am going to send a default letter saying that the documents they have sent are unreadable and to request a better true copy [ if they have one !]

 

Then I will just wait to see what happens.

I will update and seek advice here .

 

Regarding the loan .I have a letter in response to my CCA request that states they do not have the CCA and in fact they have not sent me a single document that pertains to the loan apart from a single sheet of headed paper containg a list of all the payments I have made since 2005.

 

If they suddenly come up with this CCA they have to send it to me right?

 

I will wait with baited breath

 

This forum imparts strength and I bless the day I found it and these selfless Caggers whose help is so vital

[banker_rhymes_with]

Hello SB!

 

I am going to send a default letter saying that the documents they have sent are unreadable and to request a better true copy

 

Make sure you make it clear that what they have sent does not satisfy your s78(1) Requests, so the clock on that is still ticking.

 

Regarding the loan .I have a letter in response to my CCA request that states they do not have the CCA

 

That is good news. Obviously, they may come up with it at some stage, but MBNA have been known to lose Agreements, and one of mine never materialised. I knew it was unenforceable anyway from the copy I have here...but just wanted to see what they would come up with!

 

This forum imparts strength and I bless the day I found it and these selfless Caggers whose help is so vital

 

Likewise, if you see anyone who needs help, just jump in and pass on the help. That's how CAG works, and the greatest pleasure is knowing how much it helps people, followed a close second by how much it annoys the idiot bankers.

 

That being the same idiot bankers who have brought our once fine Nation to its knees.

 

Cheers,

BRW

[summerbreeze]

Hi BRW

 

I have been thinking about these 2 CCAs and I am going to send one of them the illegibilty letter because I truly cant read the T and C but the other one I want to dispute because of the fact that it refers to conditions that must be set out in a seperate Terms and Conditions document and they have not sent me any copy of that other document .

 

Can you suggest a suitable letter format

 

Many thanks again

[summerbreeze]

I found this letter on another thread and have adapted it a little . Sorry I cant remember whose thread it was as I have been reading so many but thanks to the OP anyway

 

Advice please on suitability as I am maintaining that the alleged CCA provided refers to clauses in the T and C that are not present in the 1996 T and C document copy they sent to me and I presume are contained in a seperate T and C that they have not provided a copy of .

 

Also some parts of the documents are illegible

 

 

 

Dear Sir / Madam

 

Account Number:

 

Account in Default [ should this be dispute ??]

 

 

Reminder for copy of alleged credit agreement under section 77/78 of the Consumer Credit Act 1974

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and some Terms and Conditions which are not linked to the application form and also current Terms and Conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that ALL terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

 

Also I am afraid that parts of the alleged agreement and alleged Terms and Conditions are illegible so do not conform to the regulations

 

 

In support of this I draw you attention to the following: The copy of the agreement you have sent doesn't comply with the requirements regarding "legibility" under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, which state:

 

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

 

I hope this explains why your reply was unacceptable I await a True and Legible copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

Edited February 11, 2009 by summerbreeze

[summerbreeze]

Just a little bump

[banker_rhymes_with]

Hello SB!

 

Sorry for delay responding to your PM, been a bit busy!

 

The letter is a good one, so edit as needed to fit your own situation and send it.

 

Read it to someone else first, to make sure it reads well and you understand what it is saying.

 

Also, read it as if a Judge will read it one day, and see how it comes across. Edit it as needed until you would be happy to be sitting in Court while a Judge reads it.

 

Not trying to scare you there at all, what I mean by that is draft it so you are 100% comfortable with it, and feel it's a good building block in your Defence. Once it is, you can build on it later with other letters, and gradually you'll construct yourself a nice Defence.

 

Cheers,

BRW

[summerbreeze]

Good advice there BRW Thank you

 

I will study it and try to amend it so that I wont have any trouble explaining exactly what I mean [ I hope ]

 

I do welcome any input from knowledgable caggers Thanks again

[banker_rhymes_with]

Hello SB!

 

Further to your latest PM, I think it's good to state what they have done wrong in legal terms, but more important that you understand what you are saying.

 

So crank back if not happy you do understand, and increase content when happy with the message.

 

The key, as ever, is to be seen to be doing the right thing all the way.

 

It is hard, but you have to strike the balance between making enough contact and too little, and pointing out their errors or not...and being very pushy or not pushy enough!

 

Too pushy and too hard hitting could indeed cause them to send out 300 staff to try and find something you would hope they don't have or didn't realise they needed until it was too late to send out 300 staff!

 

In some ways, provided you do understand the template letters, sending them is good, because the bankers are so used to seeing them now, that they switch off and don't really clock how important the issues being advised are.

 

But if/when it comes to Court, and you can show the Judge that you asked for something, and kept asking for it, albeit via other means such as stating what was wrong with what they did send, then you have the Audit Trail of letters, they don't.

 

Not saying anything is probably not that wise, but there is a School of Thought that you send off a s78(1) and sit back until Court Claim arrives or the Statute Barred +6 Years is up. There's quite a lot to be said for that tactic, but OTOH, if/when the Claim does pop up, I think you would be better off if you have a little line of letters that proves you acted sensibly and reasonably from A to B.

 

But, whatever you do, make sure you understand the letter. No point sending something off because it looks legal and scary if you have not a clue what it is actually saying!

 

This is very general, so I do hope it makes some sense!

 

Cheers,

BRW

[summerbreeze]

As always BRW you are a great help .

 

I have to admit getting my head around the legalese is difficult ...

I am not so sharp these days [ have been covering up the grey with the blonde ]

 

I will soldier on with the letter and try to get it straight in my head.

 

Thank you again

[banker_rhymes_with]

Hello SB!

 

I have to admit getting my head around the legalese is difficult ...

 

I do fully understand!

 

CAG is a self-help Forum, so the key is to read and read, and search out Threads with similar issues.

 

When you've exhausted things that way and still can't understand something, then just ask! Someone will jump in to help I'm sure.

 

The trick is not to get too stressed by it, but don't underestimate the task or the time needed to get your head around some things.

 

Keep a firm handle on time, and don't let time slip through your fingers because if the pressure builds up and heats up, you'll be struggling to get things sorted.

 

The good thing is these issues do take time, despite what the snarling DCAs and slippery lawyers try to imply. Use every second of the time available to plod through the issues.

 

Being organised is arguably the most important step anyone can take.

 

Buy A4 Folders, Plastic A4 Pouches, a big Notice Board if needed, but get organised. Use the PC/Mac to the full, and make sure you can find any files.

 

One tip, I save useful chunks of text as MS Word Files, or you can also just use Text Files. But name the files in a way that you can easily find them.

 

For example, if I say something about Default Notices that is gifted and brilliant that is a nugget of information (only kidding, this is just an example), then copy that and paste it into a Document. Then save that as:

 

BRW 2009-02 - Default Notices and s87 s88

 

Then weeks later, if you need to find something that you know was said by me, and you know I was rabbiting on about Default Notices, and you know it was sometime early in 2009, then you can go to your library and find it pretty quickly. Look in your BRW section and for any dates early in 2009, and there it should be...

 

If you saved lots of bumf from me, then it may look like this:

 

BRW 2008-12 - Advice about Beer

BRW 2008-12 - CCA s78-1 Advice

BRW 2008-12 - More Advice about Beer

BRW 2009-01 - Red Wine Changes the Colour of your Sick

BRW 2009-02 - Default Notices and s87 s88

BRW 2009-02 - Even More Advice about Beer

 

Same goes for other people, so you'd build up a library that way, and can quickly go to it to see comments made by someone, and all in a rough date order too (PC/Mac can sort on date anyway, but giving the file names a date can help speed things up when making a quick glance).

 

If you want to be precise on date, then use this:

 

BRW 2009-02 14-02-2008 - Default Notices and s87 s88

 

I use a Year-Month then Date-Code, as then everything stays in order. Otherwise, 14-02-2007 ends up with 14-02-2008 etc. This can be organised in other ways, I'm just saying what works for me.

 

Create Folders on your PC/Mac for Key Documents such as Court Cases if saved as PDFs etc.

 

Indeed, you can group things via Subject rather than by the Author, so that is another way to get sorted. I just happen to remember who may've said something, so like to save the snippets by Author.

 

It's very fluid, and often you don't know something is important until you need it, although you knew it was important enough to save. So saving by Subject is not always that easy, whereas by Author can make sense out of the mass of bumf you will soon build up.

 

Eventually you can go back and edit things to make them more organised.

 

Copy any good Defences or Letters that you've seen as well, and gradually you'll build up a dedicated Library, one that is geared to your own research and issues.

 

The Web is useful too, so save any good Links in your Browser, and use Sub Folders to keep a tab on links to Legislation or useful Articles. Things like The Consumer Credit Act 1974 for example.

 

Half the battle is being organised!

 

Sorry if this is teaching you to suck eggs, but it may help.

 

Cheers,

BRW

[Pinky69]

I also find that if you google your particular problem with key words it comes up with all sorts of interesting sites and forums where it has been discussed previously or you get a legal perspective on it. You can then sift through this information and take out of it what you want which applies to your particualr situation. It's a curve of building knowledge that helps you understand what you are doing so you see how consumer law actually applies. It's also very interesting and a confidence booster. There is nothing now that any bank or DCA could throw at me that would make me turn a hair but that has taken hundreds of letters and hours and hours of scanning CAG and other sites - and I don't yet know it all and never will!

[car2403]

I also find that if you google your particular problem with key words it comes up with all sorts of interesting sites and forums where it has been discussed previously or you get a legal perspective on it. You can then sift through this information and take out of it what you want which applies to your particualr situation. It's a curve of building knowledge that helps you understand what you are doing so you see how consumer law actually applies. It's also very interesting and a confidence booster. There is nothing now that any bank or DCA could throw at me that would make me turn a hair but that has taken hundreds of letters and hours and hours of scanning CAG and other sites - and I don't yet know it all and never will!

 

Most of which usually link you back to CAG....

 

;)

[cds]

sorry to jump in on this thread, but I am looking for cca 1974 the 1983 amendments but without the 2004 notes does any body have a copy.

 

very interesting thread though

 

regards

 

cds

[cerberusalert]

sorry to jump in on this thread, but I am looking for cca 1974 the 1983 amendments but without the 2004 notes does any body have a copy.

 

very interesting thread though

 

regards

 

cds

 

Consumer Credit Act 1974 This version of the Consumer Credit Act 1974 has simply been scanned in from a printed copy.

[car2403]

Consumer Credit Act 1974 This version of the Consumer Credit Act 1974 has simply been scanned in from a printed copy.

 

I think the poster wants the 1983 Agreement Regulations, but the document before the regs were amended.

 

I can't see these on the forums - maybe PT2537 (Paul) will have a copy?

[lexis200]

BRW 2008-12 - Advice about Beer

BRW 2008-12 - CCA s78-1 Advice

BRW 2008-12 - More Advice about Beer

BRW 2009-01 - Red Wine Changes the Colour of your Sick

BRW 2009-02 - Default Notices and s87 s88

BRW 2009-02 - Even More Advice about Beer

 

That's lovely BRW, thanks for sharing:D One of the most informative things I've read on here:D

[car2403]

That's lovely BRW, thanks for sharing:D One of the most informative things I've read on here:D

 

I thought exactly the same thing.

 

Hiccup...

 

;)

[summerbreeze]

Opinions on this letter please

I have constructed a rather simpler letter in which I can more easily see what I am trying to say

which is

 

1 ] Its an application form with a seperate sheet of alleged T and C with no evidence of being part of the same documant except they have the same reference numbers hand srawled on each sheet albeit in different handwriting

2] The alleged T and C refer to exception clauses in the minimum repayment section and those clauses do not appear in the T and C supplied

3] The T and C supplied are partly illegible

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form, a separate sheet headed Financial and Related Conditions and your companies current Terms and Conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with

 

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

The alleged credit agreement which is actually an application form supplied by you falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the alleged agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed financial and related and conditions.

It does state that ALL the prescribed terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

 

Also I am afraid that parts of the alleged agreement and alleged Terms and Conditions are illegible so again do not conform to the regulations

 

 

In support of this I draw you attention to the following: The copy of the agreement you have sent doesn't comply with the requirements regarding "legibility" under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, which state:

 

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

 

I hope this explains why your reply was unacceptable I await a True and Legible copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

Edited February 16, 2009 by summerbreeze

[summerbreeze]

Planning to send the above letter toiday

 

Does it look OK ?

 

Comments please

[summerbreeze]

anyone ?

[lexis200]

Hi summerbreeze

 

Looks fine to me - the only thing is that you're missing full stops in a couple of places:)

[summerbreeze]

Thanks I checked it again and have sent it today

[lexis200]

Good luck!

[citizenB]

sorry to jump in on this thread, but I am looking for cca 1974 the 1983 amendments but without the 2004 notes does any body have a copy.

 

very interesting thread though

 

regards

 

cds

 

I think the poster wants the 1983 Agreement Regulations, but the document before the regs were amended.

 

I can't see these on the forums - maybe PT2537 (Paul) will have a copy?

 

I do actually have a copy of these. Is there anything in particular you want to know. It is 53 pages long:eek: