MBNA Application/Agreement Received Months after 1st request!

[meerkatsmimm]

Hi folks,

 

Today many months after my first request under CCA 1974, MBNA send me my application. And worst of all it appears enforceable.

 

They admit in their cover letter that it is the original agreement and that it isnt very clear, but it is the best copy they can provide.

 

The prescribed terms are listed, but they have also added modern T&C's which they state are applicable.

 

Ive so far only managed to find two references to the document being an application, but I am a little confused as the rear of the same A4 page is printed, and shows my credit limit, which is something that I would not have known until they had accepted me for the card - it was not pre-approved.

 

Its quite unclear in places, but in those areas that matter (prescribed terms and my signature) it is clear.

 

Am I stuffed?

 

Meerkat x

 

 

Edited June 23, 2009 by meerkatsmimm

[meerkatsmimm]

bumping for some feedback!

[meerkatsmimm]

and again!

[meerkatsmimm]

Hey Folks,

 

I need a bit of advice on this one and as yet we havent had a response from you guys as to your opinions on what was sent by MBNA.

 

So bumping this one up with the info in the first thread.

 

Thanks again,

 

meerkat x.

[meerkatsmimm]

anybody?

[Fred Bassett]

anybody?

 

 

It's not very easy to read is it? That in itself might make it unenforceable, but is it as bad as what you see on the screen?. I expect somebody expert will come along soon to give an opinion. This does actually look as if it's an agreement as opposed to the usual application form rubbish they send out though.

 

Fred

[angry cat]

What is the date of this?

looks like 06/05?

 

Any chance of a clearer scan, in particular the second page.

 

Off the cuff, this appears to be a later version of the old torn off slip or, form.

 

Certainly not legible, I would agree with Gail Powell, on that one.

 

AC

[meerkatsmimm]

Thanks folks for responding.

 

Its is quite poor, unreadible in places but a bit better than it is in the scan.

 

It is 06/05 - why do you ask AC?

 

In terms of it being an agreement or application, it does mention twice that its an application under the data protection information and also the fact that it has a pair of scissors image along the top also suggests to me that this was one of the tear off applications.

 

However, given that it has the prescribed terms, is this likely to be an enforceable document if it went to court?

 

If that is the case how should I proceed next with MBNA?

 

Thanks again,

 

meerkat x

[Rhia]

Even if it has the prescribed terms if it is illegible it is unenforceable. MBNA is known for the creativity of their documents, backs not matching fonts; parts missing etc.

 

If this gets to court it is imperative you get the originals for inspection in court. Hopefully it won't get to this and if MBNA has any sense they won't push it.

 

But of course, they don't.

[meerkatsmimm]

Hi Rhia,

 

Thanks for checking in!

 

We havent been able to deal with our own accounts for this last month due to personal issues with my mum, and hubby and I have the sneaking feeling that MBNA have sold these debts onto another company - Or at least farmed them out to someone else for collection.

 

Should this be the case is it best to send a CCA to the DCA, even taking into account they have sent me this document which is partially illegible?

 

Or should I send them the account in dispute letter?

 

The other account they have admitted to not having been able to find any agreement, but will continue to collect the £1 per month and the account continues to be enforceable etc.

 

Have read it elsewhere, but was thinking we should send letters to all our creditors asking to make an appointment to be able to view the original agreements in their offices.

 

Dont know if anyone has been taken up on their offers to do this mind...

[vint1954]

Try sending this first. They will not respond to a personal visit request.

 

With MBNA, they scanned a lot of agreements and then shredded them. If they had the origonal, they would have been able to get a better copy.

 

If you have already sent the CCA request to MBNA, then that is enough. Put the account in dispute and if a DCA comes on the scene, there is a bemused letter to send.

 

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account.

 

Further to my request under the above act, your attention is drawn to the fact that this account is now subject to a serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, instead supplying me with an illegible and unenforceable document, that may or may not be an agreement. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974. I have to date only received terms and conditions from yourselves. I suggest that you provide me with a copy of the origional document.

I would remind you that while this alleged account remains in dispute, that you:

• May not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• Cannot register any data with a third party.
  
• Cannot take any enforcement action, including registering Defaults.
  
• Cannot pass the account on to a third party for collection.
  
• Cannot sell the account.
  

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me.

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

I also refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

 

I am now granting to you a further 7 days to produce a copy of an executableagreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I look forward to your response.

[reorete]

i cant see any terms and conditions etc amount and payments

[Pinky69]

It is totally illegible because it is a microfiche that has deteriorated with time - MBNA put all their agreements on microfiche and destroy the originals, which they would need to produce in court if required. You can tell by the black edging that it is a microfiche. The reason for the long delay is that they were trying to find it on their system. They must send you a legible copy and you now know they aren't able to. Also, current Terms and Conditions won't do. There are no original current conditions stating they can be varied.There is no agreement with the required prescribed terms and your signature and until such times as you you receive a copy of such an agreement no further payment will be forthcoming.

 

[cashins]

It is totally illegible because it is a microfiche that has deteriorated with time - MBNA put all their agreements on microfiche and destroy the originals, which they would need to produce in court if required. You can tell by the black edging that it is a microfiche. The reason for the long delay is that they were trying to find it on their system. They must send you a legible copy and you now know they aren't able to. Also, current Terms and Conditions won't do. There are no original current conditions stating they can be varied.There is no agreement with the required prescribed terms and your signature and until such times as you you receive a copy of such an agreement no further payment will be forthcoming.

 

Do you trust our financial institutions anymore? They haven't given us much reason to have confidence in them.

 

 

 

 

Agree, they would have big problems with that.

 

For the record, I would also suggest you complain it's not legible, which being MBNA they will ignore. Neither TS or the OFT will take any interest on that by the way.

 

If you do as I did in a similar situation and SAR them for it, they will then tell you they cannot provide a copy due to 'temporary retrieval problems'.

 

David