MBNA and Aegis - No CCA received!

[exchange]

But I repeat, different date reference numbers front and back and the back refers to the T&C's which have not been provided for the date of the application, only current ones. Thanks for the replies basa48 and steven4064.

[Coactum]

Although I've been a forum member for circa 3 years I’m new to the debt section and so am still going through a learning curve. However, the agreement that you all seem to be referring to within this thread is an application form. I understood that an application form was only part of the process and that such application needs to be accepted, in this case by MBNA, and only upon acceptance is an agreement issued which in turn has to be accepted by the applicant.

 

My next observation relates in general to Credit Card Companies having the right to vary their proposed terms and conditions. I believe this comes under Regulation 7 of the regulations. This requires them to provide a copy of the executed agreement, as varied, where there is a power to vary the agreement. As such it would be acceptable to amend any agreed terms by attaching the current T&C.

 

MY MBNA story is here http://www.consumeractiongroup.co.uk/forum/mbna/203820-very-strange-behaviour-mbna.html and I can see that we share many of the standard letters and frustration at their inability to write letters.

[exchange]

Hi Coactum, thanks for taking the time to look at this thread.

I understand that they should send the current T&C's when a CCA request is made but should they not also include the original T&C's? Otherwise how do we know what was agreed to at the time. Surely it is the validity of the agreement when applying for the card that is important! Now going to look at your thread.

[Coactum]

As I said exchange this is a new course of action for me also and so I too am learning. You will note in the letter I ost recently wrote to MBNA that I said "Upon establishing a running-credit agreement a card issuer is required to provide copies of the proposed agreement to the customer. In the normal course of events an application is made and when approved and signed on behalf of the lender, a copy of the agreement in a prescribed format is issued to the borrower, thus becoming the executed agreement referred to in the aforementioned Act. Subsequent regulations permit the lender to return to the customer a true copy of the agreement which need not contain the signatures of the two parties, but, a true copy showing signatures will ordinarily be required to enforce the agreement following a legal dispute between the parties and as it would seem that we are heading in that direction it would be prudent for you to supply this to me as this may well avoid unnecessary and expensive litigation." I adapted this from details I found on the course of my research. It may well have been on this forum. I'll check back and let you know.

[basa48]

But I repeat, different date reference numbers front and back and the back refers to the T&C's which have not been provided for the date of the application, only current ones. Thanks for the replies basa48 and steven4064.

 

I'm not sure why you are so fixated by the T&Cs?

 

They are not instrumental in the enforceability or not of the agreement.

 

Only the prescribed terms being within the 'four corners' matters and despite date stamps or what the prescribed terms appear in the info on the back and moreover are referenced from the front page.

[exchange]

OK, ignore the T&C's. steven4064 agrees with me that front and back are unlikely to be the same document making the agreement unenforceable.

 

The reference MBNA make to T&C's is important as it has already been stated in case law (Wilson v Hurstanger) that terms cannot be found in another document. The prescribed terms may be on the back, but where are the default charges? So apart from the fact that the front and back do not match making it unenforceable, the agreement is also improperly executed as not all the conditions of use are in the same document. Perhaps I should have explained my reasons for considering the full T&C's not being present as an issue as well before.

[exchange]

By the way basa48, the presence of date codes not date stamps makes it likely the front and back don't match.

I'm not sure why you are fixated on making me believe the application is enforceable!

We are all trying to help each other on this site and observations are welcomed but you seem to contradict every post with another reason for enforceability. You don't have a connection with MBNA do you?!

[basa48]

By the way basa48, the presence of date codes not date stamps makes it likely the front and back don't match.

I'm not sure why you are fixated on making me believe the application is enforceable!

We are all trying to help each other on this site and observations are welcomed but you seem to contradict every post with another reason for enforceability. You don't have a connection with MBNA do you?!

 

Like I said .. devil's advocate. I don't want anyone walking into a courtroom to get defeated.

 

As an LiP you need a strong case to win not a 'maybe the pages are separate'.

 

I have no connection with MBNA which is why I am anxious for any snippets to make my own case stronger.

[Coactum]

Personally I feel we need more devil's advocates for the very reason that basa48 has put forward.

 

We all need a sounding board and this forum is superb in that regard but if any suggestion put forward only receives applause sooner or later we will get tripped up and every other subscriber on this forum who is on the same path will fall into the same trap.

 

Only by taking a balanced view and assessing the true risk v advantage of a course of action can we learn to extract that which maximises our advantage whilst minimising that risk.

[exchange]

Coactum and basa48, I agree we need to be as thorough as possible to make sure we know where we stand. I accept that the front and back of my application cannot be proven to be unconnected but in all probability are. Thanks to both of you for taking the time to read and reply to this thread.

I guess I can't help airing my frustrations. We know this is a very imprecise process when it gets to court and there are plenty of hurdles to overcome along the way.

Please understand that I am inclined to go along with the views of steven4064. He is after all a member of the site team and has more than 13000 posts!

[SB100]

Subbing with interest; I have a very similar situation with MBNA but it looks like I'm a fair bit ahead of you.

 

My threads are here if it helps...

 

http://www.consumeractiongroup.co.uk/forum/mbna/163050-sb100-mbna.html

 

http://www.consumeractiongroup.co.uk/forum/mbna/188641-just-got-my-sar.html

 

http://www.consumeractiongroup.co.uk/forum/mbna/203962-sb100-mbna-strangest-default.html

[exchange]

Hi SB100, I will have a look at your threads.

[exchange]

SB100, yours all looks very familiar. Interesting to see your alleged back of the agreement looks the same as mine but has a different date code. Now why would that be?

[exchange]

Looked again in detail and interest rates are different but otherwise the same as mine.

[SB100]

Mmm. Surely, even if these t&c's were on the back of a fold-over-and-stick mailer, as has been suggested on several occassions, the bottom part of the t&c 'side' would have the return address?

 

Still, even if it were all as they say, there are prescibed terms missing and its not got the correct title to be treated as an agreement. Spurious references could probably helps as well, where they've referred to other t&c's not listed.

 

I'm still hoping someone will comment on the statements issue- ie that they can only ever supply six years worth. There have been various Inland Revenue notes on them having to keep them until six years after the termination of the account, but maybe we could make more of this.

 

They clearly don't have supporting paperwork to substantiate their opening balance, and I seem to remember someone threatening to involve the money laundering dept at HM customs and excise or something?

[basa48]

 

Erm ... who looks like a right muppet .. yup me.

 

I've been looking at the wrong agreement. I studied Readers agreement for so long I thought it was exchange's !!!!

 

Exchange

 

I do think your agreement has an very good chance of being unenforceable.

 

It clearly states it is an application but I still think proving the reverse side wasn't all part of one form is mighty difficult.

 

Sorry about the confusion.

 

[exchange]

basa48, thanks for that, apology accepted. I really thought you had taken a dislike to my thread if that is possible!

The whole issue of 'is the front related to the back' seems to be a common problem with MBNA.

Just have to wait and see how far they are prepared to go.

[steven4064]

Basa

 

Saying it is an application doesn't matter. If it also says "credit agreement regulated buy the consumer credit act 1974" - that's what matters. And for enforceability, I don;t think it even has to say that if it has the signature and prescribed terms in the same document. Which brings it back to what you said about the two sides of the 'agreement'.

 

The CCA and associated regulations is very precise but IMHO the issue about whether two pages of an alleged agreement are the front an dback of a particular document or not wold most likkely be decided on ballance of probabilities by a court.

[exchange]

Have to wait for them to take it further.

Interesting that I have had no agreement still for another account with them. Identical letters all sent at the same time, but in separate envelopes and separate proof of delivery therefore.

[Dotty50]

At least you they have sent you something to look at, I am still waiting for Virgin and MBNA CCA'd on 28th April.

 

Silence since then!

[exchange]

Hi Dotty50, my two CCA requests were sent 27 Feb and still nothing for one of them!

[exchange]

I have written back to MBNA as they have failed to send one of my agreements as it was BOS originally and they are still looking. Despite this they are still adding interest, default charges and calling me.

A problem that I don't know if anyone knows a way around is that they keep calling me on my mobile and it comes up as 'no number' on the phone. I don't answer but I know it's them as they often leave a message within minutes. I have had a mobile number appear as well as landline numbers when they call. Perhaps they are being clever but the calls with 'no number' seem to be impossible to prove that it was MBNA. Anyone know if my mobile operator can tell me who it was? I have also told them to stop calling me in the letter I am sending tomorrow.

[Coactum]

I have repeatedly asked them to write only and simply refuse to discuss anything with them when they call, but like you this tends to be ignored. I am guessing that most of the collection departments are unable to put anything in writing that has not been approved by their legal department and that is why all they ever send is standard letters that usually make one of two requests; pay us money or phone us now. You can of course decline to accept any call by simply hanging up the moment they identify themselves.

[exchange]

They don't get the chance to identify themselves Coactum as I don't answer unless I know it is someone I want to talk to! Doesn't stop them trying though.

[Coactum]

Yes, but it might be better to answer, let them know that you acknowledge their call, but then decline the invitation to talk. That way they get the message that you are not prepared to discuss the matter on the phone. Otherwise they just keep trying, or to be more precise their autodialer keeps ringing your number!

 

Once I started to answer the calls, and let the caller know that I would not be discussing the matter with them the number of calls decreased. At one time I was getting dozens of calls each day, many were silent. This has slipped to about one a week now.