Can you 'ave a butchers at this?

[greatburdon]

Hi... Recieved from our good friend Gail Powell the following 'credit card application form'.

 

Can someone please advise whether this is an enforceable agreement as requested by me?

 

http://i597.photobucket.com/albums/tt51/greatburdon/MBNAfront.jpg

http://i597.photobucket.com/albums/tt51/greatburdon/MBNABack.jpg

 

Here is the letter she sent, full of untruths and boloney.

 

http://i597.photobucket.com/albums/tt51/greatburdon/ABBEY.jpg

http://i597.photobucket.com/albums/tt51/greatburdon/ABBEYCont.jpg

 

Appreciate any help in responding to the 'compliance of my request'.

 

greatburdon

[sunflower99]

Hi greatburdon!

No prescribed terms on front application form! and any betting that that tiny litle slip of paper containing terms they are trying to imply is part of your cca is a seperate documnet and very unlikely to be on reverse of or attached to your signed application form ,Though obviously can never be sure 100% unless it went to court ,But a 2001 not very likely to be enforceable at all and as it is a pre 2007 agreement the second document would have to be on reverse or physically attached to front application form for it to be legally enforceable! I dont think personally that a squat little bit of paper like that would be actually on reverse of that full size application form!

[sunflower99]

and a good chance it not part of the front of application form either! I am in same boat as you that MBNA sent me a application and a page of ts and cs f implying but not actually saying that the second page is on reverse of my appplication form.Also if it is a 2001 very good chance they shreeded the agreement and that is a microfilch copy! which if that be the case will cause them problems in court if they ever initiate legal action as they can be compeeled to bring original to court:D Lots of people on Cag with MBNA ccas taken out that year finding that their agreements very likely legally unenforceable !

[postggj]

subbing

[sunflower99]

Dear Sirs,

Account In Dispute

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

__________________

[sunflower99]

I sent them the letter above to start with! So if you send above letter at least you making it clear to them you have doubts about enforceability of alleged agreement:D and starting to leave a bit of a paper trail that you are disputing alleged cca

[greatburdon]

Thank you so much for your replies and the draft response.

 

I have sent them a CPR request recently so it may be that I should take them to court!

 

Will send the letter sunflower thanks, might send it 14 days after typin it like they did. Received Powells letter on 10 july (post marked 9 July) was dated 26 June!!

 

greatburdon

[sunflower99]

Hi greatburden!

Glad to have been of some help! That letter did take a long time! for them to get it through post! Good luck with everything.MBNA will probably still insist they got an enforceable alleged cca like they did with me!:rolleyes:But at least you leaving a paper trail to show you trying to get some sense out of them! if it goes further,After that i eventually wrote them a letter pointing out defects in their alleged CCA and asking them to actually confirm those pages they sent me were from same document and to confirm they still retained original! I also asked for an informal appointment to view alleged agreement at their offices:D MBNA never replied to these letters! Which tells me a lot! and at least i can show any judge a paper trail and point out to him/her that i am puzzled as to why they ignored my letters and perfectly reasonable request to confirm everything was from same document and whether they retained original plus another reasonable request to be allowed at my own time and expense to be allowed to visit theri offices to view original alleged agreement!:DIf you want any copies of that letter as a draft to amend to your circumstances just shout! ! but if you doing CPR request sound like you got a plan already!

[greatburdon]

Thank you for your support Sunflower it is a great comfort. If you have the time I would appreciate your follow up letter so that I can decide what strategy to adopt.

 

greatburdon

[sunflower99]

I will have a hunt for it and post it up when i find it!

[sunflower99]

Dear Sir/ Madam

 

ACCOUNT NO:--------

ACCOUNT IN DISPUTE

 

I am in receipt of your letter dated ------In respect of documents you have supplied to me in your letter dated, ----, it would appear that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1). This however, is not so, You have provided me with a copy of an application form and I feel it is my duty to draw your attention to the following :

 

 

1: Had you wished for an APPLICATION FORM to become a properly executed Agreement, you would have ensured that the documents sent to me for signature would have carried the correct title in the prescribed form as laid down in schedule 1 of the Consumer Credit (Agreements) Regulations 1983. I.e.

 

Credit Card Agreement Regulated by the Consumer Credit Act 1974

 

2: The Consumer Credit (Agreements) Regulations 1983 (S1 1983/1553) set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the S1 1983/1553; without the prescribed terms the documents you have supplied do not conform to section 60(1)1974 and therefore cannot be properly executed as described in section 61(1) Consumer Credit Act 1974.

 

3: Neither of the documents supplied carry any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I repeat, these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect.

 

4: There are no references on the document purporting to be the front page to indicate that the second document is linked in any way. This page also, is absent of any prescribed terms which would be necessary for the document to become enforceable.

 

You should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a compliant credit agreement is a very clear dispute and as such the following applies:

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

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

You may not pass the account to a third party.

You may not register any information in respect of the account with any Credit Reference Agency.

You may not issue a default notice in respect of the account.

If however you do still retain a copy of the original signed Agreement with all of the prescribed terms as laid down in the regulations, then I request to be allowed to view this at your offices.

 

You are reminded that should you choose litigation as your course of action, you will be required to provide the original document for the Court.

 

I reserve the right to report your actions to any such regulatory bodies as I see fit, including but not limited to Trading Standards, the Office of Fair Trading, the Information Commissioner’s Office, the Financial Ombudsman and my MP.

 

I respectfully request you review this matter in light of my comments above and I request that you supply me with the required information or alternatively confirm the account is closed and the debt written off with a zero.

 

I look forward to your reply within 14 days.

 

Yours faithfully

[sunflower99]

That is one of the letters i sent crapital one!

[sunflower99]

However in my case i got a signed application form so you may need to amend this to suit or letter will come in handy if they do eventualy come up with something signed but you you suspect maybe not enforceable!

[sunflower99]

Account In Dispute

 

Account number -------

Re Your recent reply under section 77-79 of the Consumer Credit Act 1974

I note that you have replied to the above by sending copies of your companies current terms and conditions.I must inform you that this is not sufficient to comply with the request and your company is still in default under the act.To clarify just sending the terms and conditions is a breach of the Act,The copy must be a true copy of the original agreement

 

You attention is drawn to the fact that this account is subject to a serious dispute. On 27th Sept 2008 I requested your company to supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date you have failed to comply with my request sent by recorded delivery . Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or your company, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) 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, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as your company become compliant with my request. As capital one are still not in compliance with my request I insist that the following takes place with immediate effect

 All charges levied since Default situation as described in s78(6)CCA 1974 be removed from the account and further charges cease until such time as capital one comply fully with my original request or such time as a court makes an enforcement order

 All entries which refer to missed payments be removed from my credit file

 All collection activities by your company cease with immediate effect until your company comply with my request made on 27th sept 08 or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

yours faithfully

[sunflower99]

Another lettter i sent the beggers!

[greatburdon]

Thanks again, much appreciated. I will decide on a plan of action when my head is less fuddled. Having one of those days!

 

GB

[sunflower99]

Dear Sir / Madam

Account In Dispute

Account No: Thank you for your letter of ----Account ref

The information that you supplied in response to my CCA request on -----however does not comply with a legal request for a true, signed copy of my Consumer Credit Agreement under the Consumer Credit Act, 1974.

To date, all that you have supplied is current terms and conditions and no copy of original CCA.. So as it stands this document is legally unenforceable.

What I Require:

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement exists then I require written confirmation of this.

I require that you comply with my request within 7 days of the date of this letter.

I will not correspond any further with you until I receive a copy of the requested documents as laid down in section 78(1) CCA 74.

I am advised that should you persist in pursuing this alleged debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40.

I would appreciate your due diligence in this matter and I look forward to hearing from you in writing.

Yours Faithfully

[sunflower99]

Dear Miss Renshaw

 

You have recently sent me further documents relation to my Subject Access Request, originally sent by me on the xxx xxx 200x.

 

I would like to address the Credit Agreement you have sent me. I have several major concerns about it’s authenticity, and as such I would like you to confirm in writing that the double sided document you have sent is indeed a copy of both original sides of the original executed Agreement.

 

If you still state this is the original agreement, please be aware I will require sight of it so that I can be assured it is authentic. I will be happy to travel to your offices in order to do this so that you are not inconvenienced. If you refuse this I will be requiring a full written explanation of your reasoning behind declining this reasonable request.

 

Once you have either confirmed whether or not it is a copy of both sides of the original, I will write again with details of my concerns in order for you to address them and give me your explanations, and if applicable to arrange a date that I can view the document.

 

Please do not attempt to answer this letter with a template letter, as it requires a personal response.

 

Please be aware any response you give will be held on record and will be used in any action I choose to take.

 

Please ensure all the information I have requested is forwarded as a matter of urgency, and certainly not more than 21 days from date of receipt of this Recorded Delivery letter.

 

Yours sincerely

 

 

Your biggest fans xx

[greatburdon]

You have been busy!

 

Current thoughts are to respond saying that isn't an enforceable agreement there will be no further correspondence and just wait for legal action if it ever comes, otherwise we just seem to go round in circles.

 

GB

[sunflower99]

The above is a letter that Lexis composed and sent them! Which she posted on my Cag crap one fan club thread!

[sunflower99]

You have been busy!

 

Current thoughts are to respond saying that isn't an enforceable agreement there will be no further correspondence and just wait for legal action if it ever comes, otherwise we just seem to go round in circles.

 

GB

Yes LOL! I think crapital one got a bit fed up with me! LOL i not heard from them for several months,

[greatburdon]

Did they trash your credit file? It still bothers me that they report even though they are in dispute.

 

GB

[sunflower99]

Did they trash your credit file? It still bothers me that they report even though they are in dispute.

 

GB

I must admit they probably have and one of the things that will happen when you start these wars with Banks but i accept my credit in tatters anyway and with a sick husband unable to work and me on a low wage probably in a strange way a good thing as i will not be tempted to run up more credit i will find difficulty in paying back and tempation to get me in more trouble .i believe some people on this forum are going down the road of getting adverse credit report removed and some having success and there are quite a few threads and other Caggers who can help you with this but it is a road i not gone down myself as all my energies being used in disputing debts at moment though possibly may look at it in future! I have not looked at my credit file yet! but suppose i ought to get a report sometime!

[sunflower99]

Account In Dispute

Account No ----

Dear Sir/Madam

I am in receipt of your letter of ------ I am writing to you to state that unfortunatly the documents you enclosed with letter dated -------still has not produced any evidence that the Agreement is enforceable for the following reasons.

1.One of the documents you sent is an application form.Neither of the documents carry the correct title in the prescribed form giving the nature of the agreement as laid down by schedule 1 of the Consumer Credit (Agreements) regulations 1983.if they are considered to be be suitable as becoming Agreements once properly executed.The missing title being- Credit Card Agreement Regulated by the Consumer Credit Act 1974.

2.Agreements must contain the prescribed terms within the four corners and furthermore no where on the front is there any reference to the prescribed terms and conditions which are necessary to make this agreement enforceable.

3.There is no proof that the second page is from the same agreement .An agreement that is not properly executed and was signed before 2007 is not enforceable unless it has the debtors signature and the prescribed terms in the same document.Nowhere within regulations does it state that part of the agreement can be presented on a separate document headed terms and conditionsThe prescribed terms must be within the four corners of the agreement and as you will be aware there is a House of Lords' authority on this: Lord Justice Tuckey in the case of Wilson v Hurstanger 2007 EWCA civ 299.

.The courts powers to enforce an agreement that is not properly executed and that was entered into before 2007 are limited by section 127(3) of the Consumer Credit Act 1974.This section says that an agreement that is not properly executed can only be enforced if it consists of a single document .

a) signed by the debtor, and

b)has the prescribed terms

You are reminded that should you choose litigation as your course of action you will be required to provide the original dodcument for the Court.

 

4.I also am unable to read the information on one page of the Application form due to the utter illegibility of the copy. This in itself contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

Regulation 2 states:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

You should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a compliant credit agreement is a very clear dispute and as such the following applies:

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

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

You may not pass the account to a third party.

You may not register any information in respect of the account with any Credit Reference Agency.

You may not issue a default notice in respect of the account.

 

If however you do still retain a copy of the original signed Agreement with all of the prescribed terms as laid down in the regulations, then I request to be allowed to view this at your offices.

So in reference to this copy of the credit agreement in which you claim it is compliant under section 78 of the consumer credit act 1974. (As I am sure you are aware, your statement is now binding under the same act-) I have concerns as to the authenticity in relation of the document which was sent with your letter dated ------------

One of my main concerns is specifically related to the front and back parts of the agreement in question. Whilst I do not disagree these two parts may exist as separate documents my concern is that the front part of the agreement refers to a section of the back that does not exist. It is therefore reasonable under these circumstances to assume that the single document (both front and back parts) sent as the agreement is two separate documents photocopied onto 1 sheet of paper.

As the document supplied by MBNA is an important legal document I would be grateful if you could confirm that the front and back is a single document and reflects the original exactly on both sides or two separate documents photocopied onto on sheet of paper, for example to save on paper costs or postage costs which would not be considered unreasonable.

However if you still maintain that the second page with terms and conditions is indeed on back of that signed application form so they are both on same page and that you still believe you have a correctly executed enforceable agreementI think the best way way forward to resolve this matter to both our satisfaction would be for you to contact me to arrange a convienent time for me to come over to your office to view the original agreement. i would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

yours Faithfully

Edited July 11, 2009 by sunflower99

[sunflower99]

Another letter i sent MBNA very similar to crap one one but posted it up as an altrenative as it is slightly different if i remember rightly!At least crapital one did have the courtsey to acknowlede all my letters! even if what they wrote was drivel and ignored offer to view my alleged agreement! !MBNA totally ignored my last letters with reasonable offers to visit their offices and for confirmation about my concerns about alleged agreement i brought up in above letter!

Edited July 12, 2009 by sunflower99