Agreement Enforceable MBNA

[maisierider2008]

Hello

 

I have received my CCA from MBNA and would be grateful if it could be checked to see if it is enforceable.

 

Many thanks you are doing a sterling job helping everyone.

 

Best regards

 

Claire

 

There are 5

scanned pages in the MBNA set on the right hand side of the screen.

 

Flickr: maisierider2008's Photostream

Edited March 11, 2009 by maisierider2008

[clemma]

I am presuming you took this card in 2005 - the T&C's they have sent are post-2006 so have no attachment to your account

 

Unenforceable in my eyes I have a letter you can send, but am not at my own computer. Will post it as soon as I can.

[maisierider2008]

Brilliant, thanks! Will look forward to hearing from you again.

[clemma]

Here is the letter you can send them

 

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 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.

 

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 default continues

 

Yours faithfully

[maisierider2008]

Excellent! Much appreciated!

[maisierider2008]

Hi Clemma

 

I have sent this letter off now but I keep receiving letters saying things like "last chance to get help paying", "call us by 3pm today" etc etc. But I haven't called them at all, just dealing with them by letter. Do I need to respond to these at all?

 

Grateful for your help

 

C

[Uptotheneck]

No dont reply to them, they are just trying it on.

 

Wait for a reply to the letter you have sent.

 

 

Regards

 

David

[maisierider2008]

Thanks David...Will keep CAG posted...

[maisierider2008]

Hello

 

An update.

 

MBNA have sold my debt on to a third party and said they will no longer communicate with me.

 

The third party have written to me today saying that they have contacted the land registry about securing some rights on my property.

 

What next?

 

MR2008

[B3rty]

Don't worry

 

To get a charging order they must first get a county court judgement, to take you to court the they will need to produce the valid agreement so you are a long long way from this and these are threats to make you panic

 

Send this letter by recorded post and dont sign it use a signature font in blue then come back and let us know the response

 

Date

Dear Sir/Madam

 

ACCOUNT IN DISPUTE

 

Account number:

I must admit that I am rather bemused as to why this account has been passed to you, as it is in dispute with [DCA Name] and has been since xx-xx-xxxx

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

As [DCA Name]are now in default of my Consumer Credit Act request I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

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

 

Now I would respectfully suggest that this account is returned to [DCA Name] for resolution of these defaults and breaches, as you cannot lawfully pursue any enforcement activities.

 

If [DCA Name] chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

I am of the opinion that any continued pursuit by yourselves will be a direct violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines and I will also file reports with the aforementioned bodies.

 

I would appreciate your due diligence in this matter and I look forward to hearing from you in writing to confirm your discontinuance in this matter.

 

Yours faithfully

 

Your name

 

 

[maisierider2008]

Thanks for putting my mind at rest. Will send this off today.