Mbna

[Capricorn1601]

nothing to report tonight

[Capricorn1601]

no new updates from me. I think Martin and Gail must be on holidays too

[Capricorn1601]

Hi all

 

I'm back, tanned and relaxed after two weeks of soaking up the med sun. guess what.. a barage of post from MBNA including, yes its here, my CCA. Had a quick panic, noticed yes the signature looks like mine and the details are there, but I dont think it contains the prescribed terms. I will scan in later once I have finished unpacking and loading up the washer and would love to hear from anyone in experience what they think. They have my details ok but there doesnt appear to be any t&C's and no approved/credit limit etc mentioned on the agreement.

 

 

back soon

 

 

capricorn

[Capricorn1601]

Starting to feel a little sick with nerves now so could anyone please take a look at what they sent me and give me their opinion as to whether this is enforceable. They basically sent a covering letter dated 21st July with one sheet of paper both sides I have scanned in. I do hope I can attach them.

[Capricorn1601]

http://i721.photobucket.com/albums/ww215/Capricorn1601/mbna.jpg

 

http://i721.photobucket.com/albums/ww215/Capricorn1601/mbna001.jpg

[cerberusalert]

Look at it logically, if that is supposed to be a true copy of the original agreement why on earth would they print the prescribed terms on the reverse of the signed document & only use one third of the space. Surely they would have used the remaining space if only for advertising or company logos etc., besides it's a different font & style + you can clearly see the black line across the top showing it is from a smaller document.

[Capricorn1601]

Thanks cerberusalert

 

What about the prescribed terms? to me they are not present, can you confirm this?

[cerberusalert]

Credit limit although they are allowed to say that it will be decided at a later date, repayment terms, %APR, monthly percentage rates, right to cancel. All these are within the second smaller document they provided, but not within the 'four corners' of the signed agreement. So unless that document is the reverse of the first (which I don't think it is) it would be unenforceable.

[exchange]

I would add that the smaller document refers to another document which contains more T&C's, however this was not included with mine or lots of other peoples documents. Therefore it is incomplete as they have not included everything referred to.

 

Have you signed the No 10 Petition?

 

I'll post a link in a second.

[exchange]

Petition to: Request a special investigation by the FSA and OFT into the harrassment by consumers and their families through the debt collection practices of MBNA and specifically the practices related to telephone calls and defaults while in dispute

 

Link to petition

[Capricorn1601]

so what should I do now. I've not paid them a penny since March, and am now getting letters threatening legal action and default. Is there an appropriate reply I could send them.

 

In my holiday post the two letters attached were also posted within the same period. Any advice on how to proceed is greatly appreciated.

 

http://i721.photobucket.com/albums/ww215/Capricorn1601/mbna002.jpg

http://i721.photobucket.com/albums/ww215/Capricorn1601/mbna003.jpg

[Capricorn1601]

., besides it's a different font & style + you can clearly see the black line across the top showing it is from a smaller document.

 

I tend to agree with what you said, the font and style are different. However I think the black line is from the fold in the paper.

 

Holding what they sent me up to the light the margins are set different on the 'alleged reverse' side indicating a different document.

[cerberusalert]

If it were a black line from folding how come its a third of the way up the page on the reverse yet a third of the way down the front?

 

Hopefully when they sent you a Default Notice (different to a default notification) they'll beggar that up too.

 

Send them this;

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

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 the Application Form & 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 Application Form & 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.

 

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

 

Yours faithfully

Print name do not sign

[Capricorn1601]

Thanks Cerberusalert

 

The black line could be I rotated the document when scanning? Not sure.

 

Ive sent off the letter and will now await their reply

[Capricorn1601]

Hi

 

No further contact from MBNA, but have been doing some digging in the threads and looking carefully at what they sent.

 

I dont think the two sides belong together. Reason being why would you put a reference number on the bottom of page one and yet another on page 2. I am really convinced this wasnt on the original and that perhaps this was off some other document they want me to believe it is in the 4 corners to cover the prescribed terms.

 

Just been looking on the enforceable agreements sticky and have scrutinised PTs uploads.

 

The one from MBNA also applies to me "IF" the reverse side did belong, also making the alleged agreement unenforceable:

 

"this document is improperly exectued and not in compliance with S61(1)© CCA, the reasons?

 

Look at clause 1.5 (B)

 

where are the exceptions stated? clause 2,.4 . 3.5 and 3.6? they aint there so all the terms were not easily legible when the agreement was signed

 

 

also one has to question what are these terms? are they a term which says you do not have to pay on a day with a Y in it? could be. since its not stated then we just dont know

 

oh also, since its in relation to a prescribed term, they could be in trouble here too"

Advise please?

[cerberusalert]

There's no way that those two documents are from the same page.

[Capricorn1601]

Thanks again

 

And PTs comments as to why the reverse side would not make it an executable document? Do you agree that this also applies?

[cerberusalert]

Yes, so even if it were part of the same CCA they would be stuufed anyway.

[Capricorn1601]

Many thanks again.

 

I had to get it clear in my mind so i can go on fighting them.

[Capricorn1601]

Its all gone quiet on the MBNA front. No letters, and of course they cant ring me.

[exchange]

I get the impression they work to deadlines. If no response (i.e. payment) received after 30 days, text sent, no response to text, try calling (whether you've told them not to or not!), etc.

[Capricorn1601]

Thats where I have one up on MBNA.... they only had my work's mobile number. I changed jobs on 1st June, and left the phone behind....hence no calls. Although in saying that I never answered them, and on the one occasion they caught me out and I did, I told them they had the wrong number.

[Capricorn1601]

A bit of mail tonight

 

1. A letter of arrears from MBNA - again

2. A Letter saying please ring us we have tried unsuccessfully to contact you.

 

Can anyone tell me what their next step will be?

[cerberusalert]

They'll probably send a Default Notice soon, hopefully a defective one.

[Capricorn1601]

Are they always defective? Just worried in case I get an exception to the rule.