Credit Card Application - Comments please?

[Dark]

Hello everyone

 

I am waiting or MBNA to come back with the copy of the CCA - I requested it under Consumer Credit Act 1974 and CPR 31.16 to see if they will produce a signed, executed agreement with all the terms and conditions.

 

Now, I KEPT A COPY OF MY ORIGINAL APPLICATION FORM IN 1994! well, at least the side I signed. (see below)

 

It is titled 'England Scenic Series Visa Card Application Form' and subtitled 'Credit Agreement Regulated By the Consumer Credit Act 1974' (note: not Credit Card Agreement - is this significant?

 

Similarly, the signature box says 'This is a Credit Agreement regulated under the Consumer Credit Act 1974. Sign if you only want to be legally bound by it's terms'. Again, not Credit Card.

 

No Terms and Conditions are printed on the side I signed. They may be on the other side. I do not recall signing the other side, I am sure I would have copied that too for my records.

 

I am suspecting that this document is completely deficient for the CCA1974.

 

Remind me - after one applies, they don't then send Ts & Cs for signature do they? I am wondering if the Application and Agreement might be different documents, but again, I'm sure I would have retained a copy of any other signed document too.

 

Here it is, with my identifying details removed. Comments and advice please?

 

Edited March 1, 2009 by Dark

[pt2537]

Ok, firstly that document fails to comply with Regulation 2 Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983 SI1983/1557

 

It is not easily legible

 

Secondly the form and content requirements of Schedules 1,2 and 6 Consumer Credit Agreements Regulations 1983 SI1983/1553 do not appear to have been complied with

 

Hope this helps

[Dark]

Thanks again pt2537. I am looking at Consumer Credit Agreements Regulations 1983 SI1983/1553 again now.

 

The posted scan is a 100dpi jpg, which is less legible than the photocopy I possess of the original. That is why it may difficult to read.

 

I am not sure what may be on the reverse of the document - I don't have a copy of that (lets see what my s78 request throws up) so perhaps missing parts of the agreement were on the reverse.

 

It will be interesting if the true copy they provide is different to a part copy I possess - if it is different they will have failed to comply and the agreement will go to dispute. If they then start harassing me or demanding payment or report defaults to Credit Reference Agencies I will bring out the big guns - but let's hope it doesn't come to that.

 

As far as I can see, the title of the document is deficient, as I stated above, but it sems that the term 'credit card' does not need to appear in the signature box, only 'credit'

 

On problem I have is that the copy on the CAG statutes database sems to embody changes brought into force by subsequent SIs, so it is hard to determine the wording that would have been applicable when I signed in 1994.

 

Does anyone know what statute requires document copies (such as those supplied under s77/78 ) to be legible? I think that would be useful for everyone seeking copies under CCA s77/78.

Edited March 1, 2009 by Dark

[B3rty]

This letter has worked for me in this situation

 

Dear Sir/Madam

 

Re:− Account/Reference

 

ACCOUNT IN DISPUTE

I have received the documents you sent and in the accompanying letter you state “Enclosed is a copy of the executed agreement”. You have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act.

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act.

 

The documents received amount to no more than a pre-contractual application form and do not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

 

The absence of a properly executed credit agreement prevents you from:

• Adding interest to the account
  
• Taking any enforcement action on the account
  
• Issuing any default notices or registering any default marker with a credit reference agency.
  

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

• The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid
  

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

• Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.
  

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.

What I Require

• I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards
  
• I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case.
  

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and any default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for you to write the debt off.

I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

Yours Faithfully

Your name

Name

[Dark]

Thabks B3rty.

 

Please note - the Scan is of the photocopy I retained before posting it years ago (with personal details removed).

 

It is NOT a document received in response to an s78 request - I still await their response, the prescribed period is not yet over.

 

My copy refers to terms and conditions on the other side of the document. I did not retain a copy of those. The card company may yet furnish a copy which shows that they are present and correct. We shall see.

 

The only think I can see wrong at the moment is the title which is not a 'Credit Card Agreement Regulated By the Consumer Credit Act 1974' . The word 'Card' is missing.

Edited March 2, 2009 by Dark