up against RBS and MBNA - scotland

[sunflower99]

well i managed to get them to comply just by going through security checks with a phonecall! and did not have to send them anything in end:)

[George1958]

Hi Buzby

 

There seemed to be a trend running throughout variuos threads where appending a signature to a letter, could lead to the signture being "lifted" and used in other documents/agreements.

 

Have I done wrong in omitting my signature?

 

Why is the signature necessary to allow MBNA to comply with the provisions of the DPA?

 

Regards

 

G

[buzby]

Yes! Not signing the letter is both bad form, and bad manners. I've argued this before that since these firms (should) already know your signature, then you signing confirms this. If you don't sign, it could just as easily be me trying to get your confidential info! I can see the complaint to the ICO now - MBNA refused to give me my SAR because I refused to sign! That's called shooting yourself in the foot!

 

The reasons why some folk suggest not signing has only very limited benefits - if (for example) you want proof that they hold an agreement bearing your signature and their reasoning is that if they sign the letter, the firm will know what it looks like... and forge it.

 

What they overlook is - apart from escalating a dispute into a criminal act (and one you can readily challenge) if you don;t trust the recipient, then sign slightly differently, enough for you to notice but nobody else. But as noted earlier, as you already provided MBNA with a specimen signature, NOT providing it to prove your identity is lunacy!

[George1958]

Buzby

 

I may be a lot of things but I am certainly not a lunatic, and no one has mentioned the SAR not being signed except you, not even MBNA!!

 

What MBNA did ask for was identification with my signature on it, they did not refuse to send the requested information because I didn't sign the SAR.

 

What I did ask is why you found it necessary to sign the SAR to allow MBNA to comply with provisions of the DPA? Your reply stated bad form and bad manners, fair enough I can go along with that.

 

If it was you trying to get my personnel information, surely you wouldn't get it sent to my address which is registered with MBNA, and even if you went to the bother to divert my mail, you would surely have forged my signature to do so.

 

Finally, I agree not signing can be seen as bad etiquette, however it can also be seen as mis-trust of MBNA.

 

Regards

 

G

[sunflower99]

Well said G! MBNA had enough proof when i phoned them up and conformed my identity over phone by giving them my correct security check questions.I should think that as good and probably better than sending them just a letter with your scrawl on it!and safer than sending out sensitive things which have potential to help peple commit idnetity theft! I sent that letter i posted up and never had to sign anything for my sar request:)

[banker_rhymes_with]

Hello G!

 

It's a standard stalling tactic.

 

They've been happy enough to send you confidential information to your address before, so why do they need your signature this time around?

 

Anyway, here's a solution:

 

http://www.consumeractiongroup.co.uk/digitalsignature.php

 

Cheers,

BRW

[George1958]

Thanks BRW

 

I'll take a look at this when I get back this evening.

 

Hopefully the MOB, sorry MBNA will get the message soon that I hate being stalled when I'm on a mission.

 

Have the lunatics really taken over the asylum??

 

Regards

 

G

 

[sunflower99]

I think MBNA deserve to be treated with a bit of bad form and bad maners! after the way they treat people ! I shold think ommitting signature a lot lesser crime than the things they do to their customers in trouble! They and thier agents phoned me every day at my work place which caused humiliation and embarresement to me at work and a recent entry on my sar showed they attempted to ring my workplace a few months ago in spite of telling me last year they had taken my telephone number out of system and would stop phoneing my workplace:mad:Still at least i cam bring that up in court when DJ possibly asks me in court what started me on the road to sending CCA requests to banks and disputing accounts! and tell him or her that they still attempted to phone me at my workplace in spite of saying they wuld stop!so i think MBNA deserve to be treated in bad form and with bad manners after the way they flout OFT fair collection practices!

[buzby]

What I did ask is why you found it necessary to sign the SAR to allow MBNA to comply with provisions of the DPA? Your reply stated bad form and bad manners, fair enough I can go along with that.

 

We seem to be going round in circles! I have no love of MBNA and their practices, but the issues is; if you request a SAR, you will do so in writing, and it is normal to sign that letter. If you do not, then clearly they will require proof that you are who you say you are. What better way to stop them stalling than by signing the request letter in the first place!

 

You appear to be arguing that they refused to comply with your SAR request because you didn't sign your letter OR provide a cheque in payment with your signature or details that would allow them to confirm it was 'really you' making the request.

[Sprice63]

subbing

[George1958]

Buzby

 

You are absolutely correct we are going round in circles, and in ever decreasing ones at that.

 

The point I was making, and it seems to have been missed, was that MBNA would not deliver on the SAR until they had acceptable, in this case statutory identification with a signature on it.

 

If they couldn't deliver on the SAR because it wasn't signed, then why didn't they say in the letter? On second thoughts perhaps I can answer that without anyone replying, it's because they responded to my SAR with a standard fobbing off letter.

 

Never have I once stated they will not deliver on the SAR because the SAR was not signed.

 

Anyway I do not beleive for one second that they would have delivered on the SAR if I had signed it.

 

Can you please do me a favour and read the letter I attached in a previous posting?

 

Regards

 

G

 

[George1958]

Welcome aboard Sprice63

 

Regards

 

G

[George1958]

Hi S99

 

PM me when you're day in court is and I'll try to lend some moral support.

 

Regards

 

G

[sunflower99]

Hi G!

Thanks! Thats lovely of you! :)At moment i am filling out the AQ forms and have to send them by July 31st! Thanks to Cag and trawling round some legal threads have managed to find out what to put! so i will soon be able to send them off! Cag is a life saver! will pm you when i get the court date:) i hope you get your Sar issues sorted soon! best wishes Sunflower

[George1958]

Morning S99

I usually ask for people to put it in writing when they say I've done something lovely but you already have.

All joking aside, I hope it all goes well for you.

I agree that CAG is a life-saver and that the advice (well most of it) is helpful and supportive.

If it wasn't for you and BRW then I'd probably would have given up on CAG.

Regards

G

 

[sunflower99]

Hi G

i am glad to have been of help BRW is very knowledgeable and ive found all his posts very helpful and informative,If me and BRW had not responded i am sure someone else would responded soon to help you:) or if they couldent drawn attention to your post to a cagger who could!i nearly finished with my AQ forms and will be posting them soon by special delivery! I intend to fight MBNA /Restons ,

 

 

They will have a fight on their hands!I found the AQ forms in end quite easy to fill out and did not have to badger other Caggers to much as there are so many court and AQ threads around i was able to get information and ideas to write on my AQ form very quickly! Creditcardmug is very up on things as well so if you need any ideas or help if you get any legal issues in future you cant do wrong by looking at some of his threads and posts ! i did quite a bit of poaching from his posts to fill out my AQ form!

 

Thanks again for your offer of moral support that is lovely of you! I hope MBNA cough up your Sar soon!

 

IN THE LEEDS COUNTY COURT Case No: 9LS70096

The Combined Court Centre

Oxford Row

Leeds

1st June 2009

Before

HIS HONOUR JUDGE LANGAN QC

__________

BANK OF SCOTLAND

(Claimant)

-v-

ROBERT MITCHELL

(Defendant)

__________

APPROVED JUDGMENT

__________

APPEARANCES:

For the Claimant: MISS GARDNER

For the Defendant: MR BERKLEY QC

__________

Transcribed from tape by

J L Harpham Limited

Official Court Reporters and Tape Transcribers

55 Queen Street

Sheffield S1 2DX

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

 

 

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be,

"A determination of the issue set out above". Various procedural directions then follow.

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1) (a) of that Act provides:

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made betweenthe parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt, in my own words, to expand on them:

"The key words in Section 61(1) (a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

7. In my judgment, the point with which I have just been dealing is not properly to be

characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1) (a), and they went on:

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of

discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

 

 

The above case was a recent jugement that gives hope to us all,Think i will prind details of that one in my court bundle! Very encouraging and handy just before being taken to see this!

 

Bank writes off man's debt just before court hearing - Ripon Today

and here is the link to newspaper report about avove case!

Edited September 6, 2009 by sunflower99

[George1958]

 

 

Good afternoon all

 

Sorry I've been off-line for more than a little while, but work and personal lives have been a bit hectic.

 

But just to update you all, I have heard nothing from MBNA with reference to my CCA request, and only the "need further information" letter with reference to my SAR.

 

Over the past week I have sent MBNA a reminder about my CCA stating that their failure to comply was now considered to be illegal, and also written informing them that their "need further information" letter makes no legal nor common sense.

 

I should add that as part of my DMP administered by the CCCS I pay over £100 per month to MBNA.

 

MBNA pursued me relentlessly before my CCA request and SAR, now all I get is statements with my payment via CCCS shown as a credit.

 

Now here comes the tricky bit in as far as, what do I do now?

 

Is it feasible for the small town boy to take on MBNA in court?

 

Regards

 

G

[sunflower99]

Hi G !Nice to see you back,I am still being pursued by Rsstons/MBNA who are determined to see me my OH and dog living in a cadboard box!

[George1958]

Hi S99

 

Nice to speak to you again, sorry to hear you're still being hounded by MBNA.

 

I take it they were able to produce a properly executed credit agreement?

 

Regards

 

G

[George1958]

Dear All

 

Further to my posting yesterday, I need a bit of guidance now.

 

I have submitted my CCA request and my SAR, and basically have got nothing back from MBNA.

 

I followed these up with "failure to comply" letters, and still have got nothing back.

 

Being a kind hearted soul, I have decided to give MBNA until the end of the week to react to my follow-up letters.

 

But what should I do at the end of the week?

 

Should I also stop making payments through a Debt Management Plan administered by the CCCS? The CCCS have it in writing that MBNA reject the DMP, but they still take the payments though.

 

Is it worth me making a full and final offer, I read somewhere that a DCA will buy a debt for between 10 and 15% of the debt value, so should I offer 10%?

 

Do these guys think I'm just going to go away?

 

So many questions and no money for a beer!!

 

Regards

 

G

[sunflower99]

Hi G

No they have not produced a proper agreement ,But they still trying to take me to court and attempt to make court believe they got one when i am sure they have not!,still i am getting lots of help,I got a sj hearing and disputing it ,But i have been given lots of ideas on how to give Restons/MBNA grief:D They not goung to get me and OH living in that cardboard box without a big fight!

[sunflower99]

Hi G

so they not sent anything in response to your s78 not even a application form or any ts and cs,Normally they try and fob you of with something ! So strange! Somepeople do try and reach full and final settlements with MBNA but you need to make sure it is full and final and that you want a provision made to prevent MBNA selling rest of debt onto a DCA from a another and then then new agency chasing you.MBNA are devious beggers!

[George1958]

Hi G

so they not sent anything in response to your s78 not even a application form or any ts and cs,Normally they try and fob you of with something ! So strange! Somepeople do try and reach full and final settlements with MBNA but you need to make sure it is full and final and that you want a provision made to prevent MBNA selling rest of debt onto a DCA from a another and then then new agency chasing you.MBNA are devious beggers!

 

Hi S99

 

Thanks for the tips there, but not a squeak from MBNA, maybe they're a bit confused with me making payments via CCCS.

 

I'll do a bit of research throughout this week, and maybe decide if it's possible for me to take them to court to produce the required documents.

 

Keep me posted how you're case is going, you must be really stressing over this!!

 

Regards

 

G

[sunflower99]

Its strange they not come to arrangement about sending SAR as they do normally when you send suggested letter i posted up for you,In my case they offered to let me phone them at their compliance dept to go over my security details and then sent my SAR on after that,If they not sent you any response to cca i would personally ignore them now and see what their next move is ! still every situation and person different so next move up to you G It all depends on how much you can take and if you preapred to be bombarded with phoneccalls letters threats and maybe court!In my case i am completly penniless and been told by the debtline online budget checker that i can not afford to pay them anything and should not be offering them anything so really i got no choice as i not got any money to offer a full and final so putting account in dispute only option for our economic survival as i can not afford to pay them much! and be able to keep up wth other imprtant bill or bank likrly to have enforceable ones and otr power to harm us more,Even if i had not disputed their alleged agreemnt \and attempted to make them token £! per month payments it would only have been a matter of time before they dragged me into court and if i not disputed their alleged cca they would have destoyed me and OH as we would have had nothing to fight back.So going down cca route is the only way for me!

[sunflower99]

Hi S99

 

Thanks for the tips there, but not a squeak from MBNA, maybe they're a bit confused with me making payments via CCCS.

 

I'll do a bit of research throughout this week, and maybe decide if it's possible for me to take them to court to produce the required documents.

 

Keep me posted how you're case is going, you must be really stressing over this!!

 

Regards

 

G

Sounds like a plan G! some people do do that! or i believe you can report them to head commisoners office for non compliance of SAR though apparently they got a bit of a back log of compliants! Surprise ! surprise!so takes a while for them to get back to you even after several months,so if you got the meanss to take them to court that is proably the best and quickest way to get it sorted:D I am getting a lot of help with my court case and i will be giving Restons/MBNA grief!so i am managing to deal with it and just take each day as it comes now!