MBNA and Aegis - No CCA received!

[exchange]

Realise now, as well, that as they have not sent me a copy of the T&C's from the time, they are in default still of my original CCA request and the account is most definitely therefore disputed by me and they should not be adding interest or default charges as they have not complied. I am also entitled to withold payment. The 'Financial and Related Conditions from (supposedly) the back of the application form clearly refers to 'MBNA Credit Card Terms and Conditions' as another document.

[basa48]

I am playing devils advocate here and I don't want to upset anyones apple cart. I am in a similar position with MBNA, but I think we are missing the point somewhat.

 

To make an agreement irredeemably unenforceable one or more prescribed terms has to be missing or incorrectly stated.

 

That is from schedule 6:

 

1. The credit limit or amount of credit or how it is determined.
   
2. The interest rate for purchases and cash advances.
   
3. Re-payment amount and timings.
   

 

These should all be contained in the signed agreement, i.e. on the same page (including the reverse side) or on pages identifiable as linked. MBNA could argue the pages are two sides of the same document. You would have to insist on seeing the original (if it exists or MBNA admit it still exists) either at disclosure or in court. Their argument would be the original was destroyed and the copy presented is a true copy of the double sided document. Only a judge could decide if he believed them.

 

Other particulars can be on separate pages i.e. T&Cs without it being fatal to the agreement (although they should not be interspersed). But even then it would be enforceable if the judge decides.

 

IMO this agreement would be enforceable.

[exchange]

Hi basa48, I don't mind you being contradictory and I have seen your threads on your own battle with MBNA on this and another website. I understand the prescribed terms rules. I would argue that the short version of the T&C's refers to a longer version and that this is only an extract, so where are the rest? How do I know that there are not T&C's that I might have objected to at the time I allegedly signed this application?

[exchange]

Sorry basa48, it's Egg on this site.

[Elgrand]

No Elgrand, I haven't SAR'd them but did go the CPR 31.16 route without a response to date to that, at least they do not refer to that request in any response so far.

I too have sent the CPR 31.16 with no response, but did the SAR and they came back with the same application.

If you can afford the £10 i would say it would be worthwhile as you get an awful lot of information, if they comply fully.

 

 

Thanks for your responses Elgrand. I do not think the two sides can be proved to be related but what is to stop MBNA copying both sides on to one sheet of paper and saying it is a true copy of what they gave me? The two sides have what appear to be two different date codes/reference numbers, i would be surprised if they could claim them to be of the same page.

 

There are no default charges mentioned in the last documents sent but they are shown in the T&C's sent previously and state £12, not the £25 or more that it would have been. As the agreement is from 1998 these are current T&C's not related to the application just sent to me. The financial related conditions look to be the old T&C's are almost identical to the one's they sent me. They also sent the current T&C's

This is why nothing correlates. They have not sent me the correct T&C's from the time. I should have spotted it before but obviously I was not concentrating on the detail enough. Any suggestions on my next course of action? I am inclined to let them trip over themselves further rather than initiate any action yet.

My action is to now dispute the oustanding amount they claim on the account due to the statements they have sent via the SAR.

 

They have not sent me a default to date, same as yours i believe, but what to do next is up to you. It does look as if you are trying to find out by way of the CPR 31.16 what they have if anything different from the application and you have obviously read Paul's thread on this course of action.

I too will be sending the follow up letter and attaching the proof of posting including a copy of my first letter to them.

I will if required take that all the way, but for now, i will await their response to the account balance question.

 

Sorry bit late posting this, got interrupted lol.

[exchange]

Thanks for taking the time to reply Elgrand. I have subbed to your MBNA thread.

[exchange]

I've had enough for tonight but any more opinions, advice or help appreciated.

Thanks to all who have replied so far.

[exchange]

Any more views on enforceability of my MBNA application?

[Blood Money]

[ATTACH]9168[/ATTACH]

 

Latest from MBNA attached. I know it's not a proper default notice and I have written to them again reminding them to send me a copy of my agreement.

I gather I want them to terminate the account before issuing a proper default notice as this would be the wrong way round, would it not?

Just looking for reassurance that I have got this right.

Thanks in advance for any responses.

 

Just read this thread. What is the significance of terminating the agreement before issuing a default notice? I'm guessing this has to do with posting data with CRA's on a closed a/c & the legality of this - or am I being thick? BM

[Elgrand]

Hi Blood Money,

 

If you get time, have a look at

 

A Tale of a dodgy DN

 

Sorry no good at linking, but well worth a look and will open up answers to your question.

[exchange]

Would still like an opinion on the 'agreement' in post 30 from some of the more experienced caggers.

[42man]

Hi Exchange a couple of things, firstly can I presume you have seen this thread ? - http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms And also they have not sent a correct default notice as required by the Consumer Credit Act...have they actually terminated the account as yet ?

[exchange]

Hi 42man, thanks for responding.

I have looked at the applications/agreements and mine is the same as the 1998 one on there. I have the same scenario where there are no default charges mentioned and references to conditions which do not exist on the current T&C's they sent. There is a document missing from what they sent me which is the full T&C's at the time, which they refer to in the 'Financial Terms and Conditions' supposed to be from the back of the app. The reference numbers front and back are different.

They have not sent a correct DN yet nor have they terminated the account, although I am not in the UK so post takes a week or more to reach me often, particularly when they forget to put the right postage on the envelope!

Do I wait for there next move or respond, not sure what to do next?

[exchange]

Sorry, the alleged back of the form is entitled 'Financial and Related Conditions' so these are not even called the 'Terms and Conditions' on the back!

[exchange]

bumping

[griffin036]

I would say, and it is only my opinion, that the two documents in post 30 are unrelated. In addition the related terms and conditions refer to a condition 14.1 in 10© and condition 15 in condition 12. Now I cannot see conditions 14.1 or 15 on that document. Also on the application side nowhere does it mention any reference to "Terms and Conditions" overleaf, but it does say "I have received a copy of and agree to be bound by the MBNA credit card terms and conditions" which implies they are on a separate document, and as we all know the prescribed terms should be present within the four corners of the agreement. Your application form does not have the prescribed terms present.

[exchange]

Thanks griffin036 for responding. Nothing they have sent me seems to tie together so thanks for confirming what I suspect which is that they would struggle to produce an original or true copy of an agreement which made any sense.

[basa48]

................Also on the application side nowhere does it mention any reference to "Terms and Conditions" overleaf, but it does say "I have received a copy of and agree to be bound by the MBNA credit card terms and conditions" which implies they are on a separate document, and as we all know the prescribed terms should be present within the four corners of the agreement. Your application form does not have the prescribed terms present.

 

I would kiss you !!

 

Despite my reservations regarding convincing a judge the terms & conditions photocopied to give the impression they are on the reverse side of the application. I now have another arrow in my quiver because my application says:

 

"I have received a copy of and agree to be bound by the MBNA terms & conditions........"

 

Not, I think, what you would write if they were on the reverse!! The writing on the back (so far as it is legible - which isn't far at all) is referred to as terms & conditions.

[steven4064]

The agreement in post #30 is in 2 bits - the first has your signature and the second has the prescribed terms (credit limit, repayment terms and interest rate). To be enforceable by a court, signature and prescribed terms must be in th same document. Whether a court would enforce your agreement or not depends entirely on whether the court considers that the balance of probabilities is that the two bits are part of the same document.

[exchange]

Thanks for the replies, seems front and back matching is the big issue and with different date codes on them I do not think thet can be proved to be from the same document.

[exchange]

Hi basa48, my application also says 'I have received a copy of and agree to be bound by the MBNA T&C's...' so they were a separate document for me to but they have not provided me with a copy of these, only current ones.

[basa48]

Hi basa48, my application also says 'I have received a copy of and agree to be bound by the MBNA T&C's...' so they were a separate document for me to but they have not provided me with a copy of these, only current ones.

 

The t&cs in the document in your post #30 don't look current, not with an interest rate of 17.9%.

 

The application I have for my account is similar but also refers in a couple of places to it being an application, e.g. "if your application is approved", "applicants must be aged 18 or over" etc.

[exchange]

basa48, you're right, but that is the supposed back of the application which has a different reference number to the front and is the 'Financial and Related Conditions' not the 'MBNA Credit Card Terms and Conditions' they refer to as a separate document of which I have not received a copy. The T&C's they sent me are in post 23 and have default charges as £12 and APR of 24.9% and are the only full T&C's they have sent to me. Hope this makes sense to you.

I believe I am missing the full T&C's that they refer to on the alleged back of the application and that the back is not related to the front.

It does say applicant all over mine too.

[steven4064]

MBNA always use application forms which (supposedly) double as agreements an dthey say "credit agreement regulated by the consumer credit act 1974" on them as well. If they have sent recent T&Cs as well, then they have complied with the requirements of s78 of the CCA 1974.

 

However, s127(3) is quite clear - a court can only enforce an agreement if it has your signature and the prescribed terms on the same document. A court would have to rule that the balance of probabilities was that the T&Cs and the application form were part of the same document if they were to enforce it. Clearly, in your case, this cannot be so. Therefore the 'agreement' is unenforceable.

[basa48]

MBNA always use application forms which (supposedly) double as agreements an dthey say "credit agreement regulated by the consumer credit act 1974" on them as well. If they have sent recent T&Cs as well, then they have complied with the requirements of s78 of the CCA 1974.

 

However, s127(3) is quite clear - a court can only enforce an agreement if it has your signature and the prescribed terms on the same document. A court would have to rule that the balance of probabilities was that the T&Cs and the application form were part of the same document if they were to enforce it. Clearly, in your case, this cannot be so. Therefore the 'agreement' is unenforceable.

 

Aren't the prescribed terms on the reverse and referred to on the front??

 

Proving they weren't originally on the same form is another ball game I'm afraid.