MBNA CCA issue .... I don't trust them !

[theHotHead]

Hi Haggis - I posted my previous post at the same time as you.

 

I read a little about the CPR thing, looks pretty daunting and I read arguments against it which really put me off.

 

So I guess a Subject Access Request should be my next step ..... I just wondered if MBNA could legally demand payment now they have "satisfied" my CCA request even though the account is In Dispute.

[haggis1984]

Hi Haggis - I posted my previous post at the same time as you.

 

I read a little about the CPR thing, looks pretty daunting and I read arguments against it which really put me off.

 

So I guess a Subject Access Request should be my next step ..... I just wondered if MBNA could legally demand payment now they have "satisfied" my CCA request even though the account is In Dispute.

 

Im learning as I go along, as you are so, im far from an expert. Yes CPR daunted me too so I pursued with an SAR. I think that if they have satisfied your CCA request (I really cant advise if they have or not) then you really havent any grounds to withold payment. I got lucky because MBNA acknowledged to me that they dont have the original agreement - its therefore very difficult for them to prove that what they sent me was a true copy. My situation is slightly different to yours:

 

http://www.consumeractiongroup.co.uk/forum/mbna/204693-haggis-mbna-enforceable-agreement-3.html

 

Its a risk to stop payment as if they have satisfied your request they could take you to court in the future, pull the original signed agreement out of the hat and screw you over. Thats why its important to follow through with a SAR to be sure they dont have it.

 

Try giving Steven4064 a pm, hes been really helpful on my thread.

 

I think we need to find out for sure whether or not what they have sent you so far satisfies your CA request (as ive said im not sure on this), and get a SAR off to them asap, specifically requesting the credit agreement which bears your signature.

Edited September 8, 2009 by haggis1984

[theHotHead]

Cheers Haggis - I guess they could argue that they satisfied the CCA request, they sent me a document with my signature on it and another document with some T&Cs - but as far as I am concerned that doesn't mean what they sent me is valid.

 

The documents sent do not seem to be "properly executed" for the reasons I posted earlier so for me its a case of, who's court is the ball in ?? Does some legal procedure need to take place to take the account out of dispute or does them sending me "a version" of my CCA automatically take the account out of dispute ???

 

I'll prepare a SAR doc in readiness today. I just need to be clear as to whether or not MBNA have grounds to ask me for money and/or register things on my credit file.

[theHotHead]

Hello all, I got my SAR together, which address should I send it to:

 

MBNA Europe Bank Limited

P.O. Box 1004

Chester Business Park

Wrexham Road

Chester

CH4 9WW

 

or

 

MBNA Credit Card Services

Customer Assistance Dept

P.O. Box 30

Chester

CH4 9FD

 

Cheers.

[latipac girl]

Hi

 

I sent mine initially to the first address but i have since had a telephone call to say that it should go to the bottom address and headed Customer Advocates Office. To be honest it seems that wherever i post things they never seem to get it!

 

Latipac girl

[theHotHead]

Thanks Latipac Girl.

 

I found this on another website, can someone tell me what they think - its with regard to Prescribed Terms:

 

“It is clear that s61(1)(a) is referring to the prospective regulated agreement, so that its requirements must be fulfilled by that document and not just by another document to which it refers”: Goode, Consumer Credit Law and Practice, paras 30.102-30.103.

 

This is interpreted by John McCloud, PhD, LLB, Barrister, Professor of Law, University of Liverpool:

 

On the same side as the signatures the document itself must contain the terms prescribed in the Agreement Regulations [Reg 6(1)]. To the extent that these rules refer to information which must be stated ‘together and as a whole’, that will ensure the larger list is included in the actual agreement rather than any document referred to in it.

So seeing as my signature appears on another page to the terms AND the Prescribed Terms refer to another document and are NOT contained within the document I signed, that makes my agreement not properly executed, right ?!

[theHotHead]

Sorry to bump this but I am desperate to know what my next move should be.

 

I haven't made a payment now for around 3-4 months and they warned me last week that unless I make a payment CRA will be notified.

 

Cheers.

[Capricorn1601]

stand your ground. the likely hood is they have already informed them about the past 3-4 months missed payments. You can argue the point about having any black marks etc removed later.

[haggis1984]

stand your ground. the likely hood is they have already informed them about the past 3-4 months missed payments. You can argue the point about having any black marks etc removed later.

 

The issue seems to be that what MBNA have provided so far may have satisfied the CA request. In which case they would be entitled to continue to mark credit files and request payment.

 

It seems possible that what they have provided so far is improperley executed, and as such unenforcable. However, there is a possibility though that they provide an enforceable agreement at the time of any court proceedings.

[theHotHead]

Haggis, thats exactly my feeling.

 

I want to send them a letter telling them that what they sent me does not constitute an agreement that is enforceable and so I am not acknowledging the debt until they provide me with a CCA that is properly executed.

 

I want to list the reasons why I don't think it is properly executed too (is that a good idea ??).

 

I just noticed from the docs they sent me that I opted for PPI but I'm self employed and so not eligible for it, I want to hit them with a claim for mis-selling me that too. Should I deal with this seperately ?

 

What should be my next step and are there any template letters recommended for me to use ?

 

I appreciate your time and help with this .

[haggis1984]

Defo start a ppi reclaim asap. Id be inclined to do it sepreatley though - keep the letters seperate. That way the paper trails wont get mixed up. It seems that people have a fair amount of success reclaiming ppi through the financial obudsman, which is probably less hassle than going through the courts.

 

Template letter here: http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/51491-ppi-template-letter.html

 

Once youve started that process make a complaint to the ICO on the grounds that the balance being shared with credit referene agencies is innacurrate as it contains mis-sold ppi. It seems logical that this would be upheld (although it seems logic often goes out the window when dealing with financial institutions )

 

I dont see the harm in listing the reasons that the agreement is improperley executed. Hopefully someone more knowledgable can comment on whether or not youve interpreted that accurately.

 

Oh and im glad to help!

[haggis1984]

Another thought...

 

How long did it take MBNA to supply the documentation they have supplied so far after recieving your initial CA request? If it was more than the 12+2 day period, and they added charges during that period, complain to the FOS that those charges were added unlawfully and get them refunded.

 

That further invalidates the balance MBNA are reporting to CRAs too.

[theHotHead]

22nd of June-ish the 12+2 elapsed, I didn't get their version of my CCA until about the 28th August - so they were well out. I'll check to see exactly what they have charged me since the 12+2 elapsed and contact the FOS as you have suggested.

 

I've noticed something else on the CCA they sent me, another of the prescribed terms is missing. The When To Pay term refers to a condition 2.4 which again isn't present on anything that I signed - it refers to another set of docs.

 

So I make that 2 prescribed terms referred to but not present, that and How Much To Pay !

[theHotHead]

Hello all. I am about to send the following to MBNA, can someone tell me if it's appropriate and what needs to be removed/amended please:

 

Dear sir/madam

 

Thank you for your response to my request under the Consumer Credit Act section 78.

In your response you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any prescribed terms means that a court would be prevented from enforcing it under s127(3).

 

I bring your attention to:

 

a. The prescribed terms are NOT on the page containing my signature.

b. There is no mention of a credit limit or that there is no credit limit, the only mention is that the credit limit “may change”.

c. A prescribed term regarding how much to pay (term 4.b) refers to a separate larger set of Terms & Conditions not present on my Credit Agreement making the agreement not easily legible.

d. A prescribed term regarding when to pay (term 3) refers to a separate larger set of Terms & Conditions not present on my Credit Agreement making the agreement not easily legible.

e. The lack of a creditor’s signature.

 

I am granting to you a further 21 days to produce a copy of a properly executable agreement. After that I will consider that the above account is closed and that you will no longer pursue the alleged debt.

 

After this period you should close the file and cease processing an personal data relating to me on this matter.

 

Yours faithfully

 

Should I include this in my letter:

 

(“It is clear that s61(1)(a) is referring to the prospective regulated agreement, so that its requirements must be fulfilled by that document and not just by another document to which it refers”: Goode, Consumer Credit Law and Practice, paras 30.102-30.103.

 

This is interpreted by John McCloud, PhD, LLB, Barrister, Professor of Law, University of Liverpool:

 

On the same side as the signatures the document itself must contain the terms prescribed in the Agreement Regulations [Reg 6(1)]. To the extent that these rules refer to information which must be stated ‘together and as a whole’, that will ensure the larger list is included in the actual agreement rather than any document referred to in it.)

 

I am also about to send them a SRA letter and a mis-sold PPI letter.

 

Thanks in advance.

Edited September 11, 2009 by theHotHead

[diddydicky]

Hello all. I am about to send the following to MBNA, can someone tell me if it's appropriate and what needs to be removed/amended please:

 

Dear sir/madam

 

Thank you for your response to my request under the Consumer Credit Act section 78.

In your response you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any prescribed terms means that a court would be prevented from enforcing it under s127(3).

 

I bring your attention to:

 

a. The prescribed terms are NOT on the page containing my signature.

b. There is no mention of a credit limit or that there is no credit limit, the only mention is that the credit limit “may change”.

c. A prescribed term regarding how much to pay (term 4.b) refers to a separate larger set of Terms & Conditions not present on my Credit Agreement making the agreement not easily legible.

d. A prescribed term regarding when to pay (term 3) refers to a separate larger set of Terms & Conditions not present on my Credit Agreement making the agreement not easily legible.

e. The lack of a creditor’s signature.

 

I am granting to you a further 21 days to produce a copy of a properly executable agreement. After that I will consider that the above account is closed and that you will no longer pursue the alleged debt.

 

After this period you should close the file and cease processing an personal data relating to me on this matter.

 

Yours faithfully

 

Should I include this in my letter:

 

(“It is clear that s61(1)(a) is referring to the prospective regulated agreement, so that its requirements must be fulfilled by that document and not just by another document to which it refers”: Goode, Consumer Credit Law and Practice, paras 30.102-30.103.

 

This is interpreted by John McCloud, PhD, LLB, Barrister, Professor of Law, University of Liverpool:

 

On the same side as the signatures the document itself must contain the terms prescribed in the Agreement Regulations [Reg 6(1)]. To the extent that these rules refer to information which must be stated ‘together and as a whole’, that will ensure the larger list is included in the actual agreement rather than any document referred to in it.)

 

I am also about to send them a SRA letter and a mis-sold PPI letter.

 

Thanks in advance.

 

the prescribed terms must be "within the signature document" (within its 4 corners) and not necessarily on the same page as the signature (IMO)

 

just pointed out as you state in your letter to them that you beleive it must be on the same page!!

 

i note the reference to john mccloud but can he show us any court case where a judge has ruled the agreement defective where the agreement contains the prescribed terms but say on the back rather that the signature side (a genuine agreement i mean - not a cobbled uyp photocopy!)

 

i rather doubt that such a decision has ever been made and therefore i would be cautious of using this as a sole reason to defend with

[haggis1984]

the prescribed terms must be "within the signature document" (within its 4 corners) and not necessarily on the same page as the signature (IMO)

 

just pointed out as you state in your letter to them that you beleive it must be on the same page!!

 

i note the reference to john mccloud but can he show us any court case where a judge has ruled the agreement defective where the agreement contains the prescribed terms but say on the back rather that the signature side (a genuine agreement i mean - not a cobbled uyp photocopy!)

 

i rather doubt that such a decision has ever been made and therefore i would be cautious of using this as a sole reason to defend with

 

Are you saying then that you believe what the OP has been provided with so far satisfies the CA request and would be enforceable in court?

[haggis1984]

MBNA like to play silly buggers with SARs, so try an pre-empt their stalling by including something along the lines of the following:

 

Thank you for your response to my subject access request. I note your request for ‘positive identification’ – which includes my signature.

Your attention should be drawn to the Information Commissioners Office guidance on this matter – Data Protection Good Practice Notes:

(http://www.ico.gov.uk/upload/documents/library/data_protection/practical_

application/checklist_for_handling_requests_for_personal_information.pdf )

Paragraph 2. Do you have enough information to be sure of the requester’s identity?

‘Often you will have no reason to doubt a person’s identity. For example if a person with whom you have regular contact sends a letter from their known address it may be safe to assume they are who they say they are.’

Clearly, in these circumstances, the above guidance applies.

Owing to a number of disputes on this account, somewhat related to the fact I do not believe that you have in your possession a document with my signature on it (you will thus have nothing to compare the signature on my identification to) I am unwilling to provide this. Alternatively, I will provide some personal information which MBNA does hold on me:

 

Date of Birth:

Place of Birth:

etc

[diddydicky]

Are you saying then that you believe what the OP has been provided with so far satisfies the CA request and would be enforceable in court?

 

what i was saying was that if for instance the signature page said something along the lines of:-

 

i have read the terms and conditions overleaf AND the prescribed terms were indeed overleaf, that IMO it would be very strange if a judge found in your favour if you argued that the prescribed terms were not on the same side as your signature, and therefore the agreement is defective!, since they would clearly be within the four corners of the signature document

 

as for MBNA thats a different matter- as with many companies they are prone to copying different things from different documents and putting them together

 

trick is to catch them out!!

[theHotHead]

Diddydicky - I don't think that is necessarily the case. We are not the law people, not many people would be able to read T&Cs and see any faults/mistakes, they are not easy to follow or understand which is the reason for the "not easily legible" argument.

 

If I gave someone some technical ramblings about the inner workings of a hard drive and then got them to sign a document which actually said I would reformat their drive and they would lose all their data, surely it would be my responsibility to make sure that the customer knew what they were signing !

 

If the guy went through the prescibed terms and when we got to the parts that refer to another document, I would've asked "what exactly does that refer to ?". For all I know it could refer to something like "we can take your house, car and other half if you miss 1 payment". I didn't see it so I wouldn't know what it referred to. Surely a court would see that too ???

 

I'm gonna send the letter above minus a few changes today, I can't wait any longer for more responses .. fingers crossed !!!

 

Thanks to all, I'll keep you posted.

[diddydicky]

Diddydicky - I don't think that is necessarily the case. We are not the law people, not many people would be able to read T&Cs and see any faults/mistakes, they are not easy to follow or understand which is the reason for the "not easily legible" argument.

 

If I gave someone some technical ramblings about the inner workings of a hard drive and then got them to sign a document which actually said I would reformat their drive and they would lose all their data, surely it would be my responsibility to make sure that the customer knew what they were signing !

 

If the guy went through the prescibed terms and when we got to the parts that refer to another document, I would've asked "what exactly does that refer to ?". For all I know it could refer to something like "we can take your house, car and other half if you miss 1 payment". I didn't see it so I wouldn't know what it referred to. Surely a court would see that too ???

 

I'm gonna send the letter above minus a few changes today, I can't wait any longer for more responses .. fingers crossed !!!

 

Thanks to all, I'll keep you posted.

 

the "not easily legible" as per the default notices and copy of documents regulations refer to the UNREADABILITY of the documents sent and have no bearing on whether you understand the terms and conditions. the regulation offers NO RELIEF from this obligation therefore the argument that "this is the best we can produce" is no defence.

 

rest assured that if the documents are not "easily legible" then they fail to comply with your s78 request and any enforcement action will be unlawful

 

If you cant read the documents i would write and offer to travel to where the original document is located to inspect it.

 

I would also point out that the "true copy" they must supply cannot be some reconstruction of what the original "might" have looked like and therefore they must have had the original in their possession when they made and sent you a true copy (they didnt -it is probably a print out from a microfiche)

 

I would then point out that you cannot beleive that they do not posses a modern photocopier and therefore it would be a simple matter to photocopy the original document.

 

I would then point out that if the original that they have allegedly sent you a true copy of is itself not legible then it is hardly likely to be any use in court to support a claim against you !

[theHotHead]

Oh . Well thats that argument over then.

 

However, I still feel there is some mileage I can get from the missing clauses in the prescribed terms at the very least, as well as the other points like no stated credit limit and no creditor's signature.

[diddydicky]

Oh . Well thats that argument over then.

 

However, I still feel there is some mileage I can get from the missing clauses in the prescribed terms at the very least, as well as the other points like no stated credit limit and no creditor's signature.

 

not sure what your aims are

 

you now have to choose to either:-''

 

issue proceedings against them and seek a court order that the agreement is unenforceable and/or restore your credit reputation

 

OR

 

defend and counterclaim whatever they bring against you

 

in the latter case ( which is what i would recommend) nothing to do except keep all documentation in your files for later use

 

hope that helps

 

dick

[theHotHead]

I just noticed that on their T&Cs it states that the interest rate for purchases will be set at 1.2408% monthly except as mentioned in condition 2.1 - which doesn't exist in the credit agreement at all.

 

So I now make that 3 conditions refered to in the prescribed terms that are not present on the CCA !!!

 

Yeah, I'll send the letter that I don't accept what they sent me as my CCA and that the account is still In Dispute because the CCA is not properly executed. If they want any money from me, they will have to provide me with a properly executed agreement or take me to court and I will argue my case.

 

Cheers Dick !!

Edited September 14, 2009 by theHotHead

[diddydicky]

I just noticed that on their T&Cs it states that the interest rate for purchases will be set at 1.2408% monthly except as mentioned in condition 2.1 - which doesn't exist in the credit agreement at all.

 

So I now make that 3 conditions refered to in the prescribed terms that are not present on the CCA !!!

 

Yeah, I'll send the letter that I don't accept what they sent me as my CCA and that the account is still In Dispute because the CCA is not properly executed. If they want any money from me, they will have to provide me with a properly executed agreement or take me to court and I will argue my case.

 

Cheers Dick !!

 

always welcome

[theHotHead]

Yesterday I had a call from MBNA Customer Assistance, they said they were nothing to do with Customer Services, they came across very helpful and eager to help me out during this "difficult time".

 

I was a little suspicious but I did not cut off communication, keep my options open. I'm waiting for the SAR to come back .. the clock is ticking as of today. I did wonder why they were being "nice" all of a sudden.

 

I sent the letter explaining that the account is still In Dispute despite me receiving my CCA due to the agreement being not properly executed. Once I get the SAR I will total my PPI payments and put in my complaint for that as well.