MBNA cc/Loan Settlement offer

[citizenB]

Odezi, If the account is in dispute, let them have sight of the following

 

 

Just write back quoting the bit below

 

Deceptive and/or unfair methods

 

 

2.7 Dealings with debtors are not to be deceitful and/or unfair.

 

2.8 Examples of unfair practices are as follows:

 

k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2168708.html

 

HTH

[odezi]

I received one CCA for a credit card and one foe a loan.

 

I should be grateful if anyone can advice me on the enforceability of the agreement. I already received advice on the credit card and the advice is that it looks like it is not. The links are below

 

MBNA LOAN1 pictures by odezi999 - Photobucket

 

Pictures by odezi999 - Photobucket

[odezi]

I have also just noticed that the account number on one of my my credit card statements is always different to the account number quoted in other correspondence. I don't know if this has any relevance. The other credit card is fine.

[Mightyacorn]

I have also just noticed that the account number on one of my my credit card statements is always different to the account number quoted in other correspondence. I don't know if this has any relevance. The other credit card is fine.

 

 

I have one account with MBNA, but they quote 2 numbers for some strange reason. I did CCA both numbers but they sent me the same documents. A strange system they have

 

 

 

 

 

 

 

 

[odezi]

Hi All

 

I should be grateful if anyone with experience of reviewing MBNA agreement could look at my agreements and give me their opinion. I don't think the credit card agreement meets the CCA requirement but I am not sure about the loan agreement.

 

I still have not received any CCA for my second credit card. I have already sent them a letter informing them the account is in dispute, but they are simply ignoring me, probably because the amount owing is £1400 and £500 of it is made up of charges. I have had the account for 10 years and until last year I paid PPI, which if I am successful will mean they will be owing me. I have also sent them SAR. They have aksed for an increase in the monthly payment for this account and I have said no. I'm guessing they want to claw back as much as possible then write off the rest.

[Redfish]

Bump. I'd like to hear what people think about the loan agreement as we have one exactly like it.

[odezi]

I have had various correspondence from Debt Clear Recoveries regarding one of the accounts with MBNA. They are requesting payment in full, over 5 years or partial settlement, none of which I will take up. Should I be corresponding with them about the account or should I continue with MBNA?

[Redfish]

Odezi, see my post here http://www.consumeractiongroup.co.uk/forum/show-post/post-2406581.html

 

The agreement I asked the solicitor about was our MBNA loan agreement, very much the same as yours - the fact that it uses the wording 'cash advance' rather than the wording 'amount of credit' means there is a high probability that it can be argued successfully as unenforceable in court.

[odezi]

Odezi, see my post here http://www.consumeractiongroup.co.uk/forum/show-post/post-2406581.html

 

The agreement I asked the solicitor about was our MBNA loan agreement, very much the same as yours - the fact that it uses the wording 'cash advance' rather than the wording 'amount of credit' means there is a high probability that it can be argued successfully as unenforceable in court.

 

Redfish, very many thanks for the attachment. It was a very interesting read and got me considering my loan further. The loan itself was to repay an existing loan and credit card, both owed to MBNA. When this loan was approved, MBNA automatically paid off the existing loan and paid the amount owning on the credit card before paying what was left to my account. Would this also be something to put forward because at the time of the application I informed MBNA the loan was for consolidation. Since I did not make the payments myself and they adjusted the other accounts I had with them with this loan, should the agreement not have included this?

[Redfish]

Odezi, you might have a case for a multiple agreement - because part of it was a restricted loan and part of it was unrestricted - but I think there's not a lot of clarity in case law on that yet. If it was a multiple agreement you would have had to have two sets of prescribed terms and signatures. That's my understanding.

 

But as you have an issue with the 'cash advance' bit anyway, which is about the absence of a prescribed term in name, then you might not need the multiple agreement bit - though everything comes in handy.

[odezi]

Odezi, you might have a case for a multiple agreement - because part of it was a restricted loan and part of it was unrestricted - but I think there's not a lot of clarity in case law on that yet. If it was a multiple agreement you would have had to have two sets of prescribed terms and signatures. That's my understanding.

 

But as you have an issue with the 'cash advance' bit anyway, which is about the absence of a prescribed term in name, then you might not need the multiple agreement bit - though everything comes in handy.

 

Redfish, many thanks for the reply and the very useful information. Based on the agreement and the use of cash advance rather than credit as the regulation demands, how would you suggest I proceed with this? Should I write to MBNA informing them that I believe the agreement does not comply with the required regulation?

[Redfish]

Should I write to MBNA informing them that I believe the agreement does not comply with the required regulation?

 

Odezi, that's exactly what I did - with the heading 'Account in Dispute'. Of course it's your choice. If you need any help in drafting your letter I can post up what I sent them and you can modify it for yourself, just ask. The reply I got from MBNA was simply an assertion that the agreement sent complies with the Act, no discussion of the actual issue of amount of credit. My plan is to sit on it, ignore all the harrassment letters and calls, until they take me to court, then get a consumer credit barrister (the one I spoke to) to defend on the basis of absent prescribed term. That's if it gets that far.

[odezi]

Redfish, many thanks for the information you have provided. Now I really understand why MBNA are not making a fuss about the agreements I have with them. My debt is been managed by a debt management company and the monthly amount I pay towards each debt is quite low and MBNA that were aggressive with me prior to me receiving my CCA have suddenly stopped bothering me. Even when they asked for an increase in payment and I said no, normally there would be threats but nothing. The loan was sold to 1st credit and they have also toned down their aggression...amazing. The error I have made to date is that when I have put accounts in dispute, I have still continued to pay them. I think I need to stop paying.

 

I should be grateful if you could please post up the letter you sent. It will be very useful. Once I have sent it should I stop making payment to them?

[andmast01]

Hi odezi

 

I have a CCA with MBNA, I have had it reviewed and found that not only is it unsigned but alos fails to meet the prescribed terms for interest. I am paying them at the minute under a DMP.

 

What I am after is getting this entry removed from my Credit record, any ideas?

thanks

[Redfish]

I should be grateful if you could please post up the letter you sent. It will be very useful. Once I have sent it should I stop making payment to them?

 

Odezi, it's up to you about stopping your payments, we have stopped ours. Even though we have stated the account is in dispute and we give no permission for MBNA to distribute our personal data to credit reference agencies, they will actually go ahead and do that anyway... so if you choose to go down this route then you have to say goodbye to having a clean credit score until it goes to court (and you win legally), or you reach a settlement where this is one of your demands, or until the statutory period is over (currently 6 years, but if the law changes it may be reduced to 3 years). You will get lots of harrassing phone calls and letters etc. So it's a big choice to make. Then you may have to deal with a court case. It's a big commitment.

 

The thing about you paying small amounts is that the debt never gets cleared, the statutory period never kicks in and the interest mounts up massively. So in my honest opinion it's not worth paying reduced amounts. Here's our letter:

 

I refer to your reply to my earlier correspondence dated xxx in which you enclose a copy of an agreement regulated under the Consumer Credit Act 1974.

Please note, this agreement does not contain all the prescribed terms and therefore is unenforceable by virtue of ss.113(1) and 127(3) of the Act. Specifically the agreement does not contain a term stating the amount of the credit as required by Sch. 6 to the Consumer Credit (Agreements) Regulations 1983.

As upheld by His Honour Sean Overend in Central Trust Plc v Spurway [2005] C.C.L.R 1, in reference to the House of Lords judgement Wilson v Secretary of State for Trade and Industry (Wilson v First County Trust Ltd (No.2)) [2004] 1 A.C. 816; [2003] C.C.L.R. 14 (HL), that,

a) the regulated agreement is not “properly executed”, under section 61(1) of the 1974 Act;

b) the agreement is enforceable against the debtor only on an order of the court (section 65(1));

c) since no document containing all the prescribed terms was signed by the debtor, the court “shall not” make an enforcement order under section 65—section 127(3);

The judgement upheld was that the expression “cash advance” was not synonymous with “amount of credit”, particularly when credit has the restricted meaning within section 9(1) and (4) of the Act.

As the agreement you have sent does not bear any term described as “amount of credit”, a prescribed term, the agreement is not properly executed and irredeemably unenforceable.

I am reluctantly forced to cease payments due the evidence that the agreement for this account does not comply with law as it should, and cannot in all consciousness continue to make payments towards MBNA, whose business it is to ensure it operates under the laws of this country, when it has paid such little regard for the law in its dealings with me, a financially unsophisticated consumer, who relied on MBNA’s compliance with law that was drafted for the protection of people like me.

 

I am sure you will fully understand my reasons that now that I realise MBNA’s failure to regard the law, I cannot participate in such a practice which disadvantages all consumers.

 

Please note, the lack of a compliant agreement is a very clear dispute. I trust you are aware of the limitations placed upon you now that the account has been formally disputed. You are reminded in particular that

 

1. You are not entitled to enforce the agreement

2. You may not demand any payment on the account, nor am I obliged to offer any payment to you

3. You may not add further interest or charges to the account

4. You may not pass the account to a third party

5. You may not register any information in respect of the account with any credit reference agency

6. You may not issue a default notice related to the account

 

Please note, you may also consider this letter as a statutory notice under section 10 of the Data Protection Act (1998) to cease processing, with immediate effect, any data in relation to this account, both within your own internal records and any records with any third party agencies, that may cause damage or distress to me or to another.

 

I would ask you to note that I will not enter into any communication regarding this matter except in writing by post.

[andmast01]

Thanks Redfish

 

You make some good points, What is the reality of a legal win? Its a big question I know and has a lot of variables, haviong already got 50% of the info I am thinking of taking over from the solicitors and pursuing this myself, any ideas?

[odezi]

Redfish, many thanks for posting up the letter. It is extremely useful. My credit history has already been destroyed. My creditors have made sure of that. It is something I will need to sort out in the future. I am aiming to be tough with these companies. So far they have been very cagey in their approach and I am guessing it is because they know something I don't.

 

Many thanks again for the letter.

[Redfish]

Thanks Redfish

 

You make some good points, What is the reality of a legal win? Its a big question I know and has a lot of variables, haviong already got 50% of the info I am thinking of taking over from the solicitors and pursuing this myself, any ideas?

 

Andmast, if you know all they have is an agreement that has not been signed by you then you are home and dry, there's no way they can enforce it. BUT you have to be careful to check whether they sent you an unsigned copy (which apparently they can do under a CCA s77/78 request), but the original agreement could in fact be signed. See this link

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html#post1868913

 

On the issue of whether to go it solo or stay with your solicitor it's a difficult decision. Most people on this forum would say you could do it on your own as you get plenty of information how to. I do think it is really important that you inform yourself so that you have the knowledge of what the possibilities are and the power to decide what needs to be done and what you want to do with your case.

 

Personally, in addition to informing myself and taking it part of the way I would prefer to get a solicitor to prepare myself for any possible court action. That is why I would look for a no win no fee solicitor who is prepared to consider my arguments about my cases and ensure they get counsel's opinion on these arguments before dismissing them. The only reason for me trying to get a solicitor is that I would like to use the services of a knowledgeable barrister who is confident of arguing these cases because I have read on this forum how judges tend to pay more heed to these barristers' knowledge of the CCA, and little interest in a litigant in person's knowledge of it. That matters when you have to be persuasive and win the argument. And it looks like the only way to get a barrister on a no win no fee basis is to go through a solicitor.

 

The reality of a legal win? Depending on what is incorrect on your agreement really. If your lenders don't have a signed agreement I would say you have a huge chance of a legal win, and it would probably never make it to court - the lender would just have to write it off. If one of the prescribed terms is missing or mis-stated you would also have a high chance (for pre April 2007 agreements). But anything else is really up to the judge and your ability to persuade unenforceability. Best to read the threads entitled **WON** and you will have a good understanding of cases that people have posted up about that have gone through successfully.

[exchange]

Hello odezi, just to let you know I have been following this thread as I am particularly interested in the MBNA Loan situation. I don't want to hijack your thread, but I too have the 'Cash advance' instead of 'Amount of credit' error, the problem for me is that the agreement was online and post April 2007 so I'm not sure where i stand as different regs apply.

Anyway, good luck with your battle, link to mine is attached.

Exchange

http://www.consumeractiongroup.co.uk/forum/mbna/217778-mbna-loan-battle-begins.html