MBNA SAR response - is CCA enforceable please?

[cadwallader]

Finally received an SAR response from MBNA (no s78 response yet though).

 

Here is the copy CCA they sent - 2 separate pages with nothing to actually link them as 2 sides of the same document. Agreement dates back to 1996.

 

 

 

Is the agreement enforceable?

 

Thanks

 

C

[vint1954]

They would have to produce one document in court. The right hand side of the T&C's seems to be missing?

[vint1954]

Try checking it out against the link

 

http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

[cadwallader]

Thanks Vint

 

I think its just that the copy wasn't fully centred so the right hand side is slightly cropped.

 

Does anyone have an opinion if MBNA CCAs from the mid 90's generally were enforceable?

[cadwallader]

Any thoughts? The second page does not sem to follow logically from the first i.e. the question about previous address details for past 3 years.

 

Thanks

 

C

[vint1954]

Looks like an application from 1996.

 

It is legible, so may be enforcable.

 

1996

 

Enforceablility : There is an issue of legibility so very likely not

However, would be enforceable if a legible document were to be produced because - There is a signature on Page 1 and Prescribed terms on Page 2

 

 

 

 

Comments : These documents are very difficult to read and were supplied to the owner in this form.

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

Quote:

 

1 Citation, commencement and interpretation

 

(1) These Regulations may be cited as the Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 and shall come into operation on 19th May 1985.

 

(2) In these Regulations--

 

"the Act" means the Consumer Credit Act 1974;

"Agreements Regulations" means the Consumer Credit (Agreements) Regulations 1983 and any reference to any

provision of those Regulations includes in the case of modifying agreements which are, or are treated as, regulated

agreements a reference to Regulation 7 of, and the appropriate paragraph of Schedule 8 to, those Regulations;

"cancellable agreement" includes an agreement which is a modifying agreement treated under section 82(5) of the Act

as a cancellable agreement; and

"lettering" includes figures and symbols.

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/2 Legibility of notices and copy documents and wording of prescribed Forms

 

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 .

 

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act without any alteration or addition, except that -

 

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed by these Regulations; and

 

(b) every Form shall be completed in accordance with any footnote.

 

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced in addition to any such Form.

 

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

Thus, if you cannot read what they have sent, then they have not complied with your Request. If the Card Agreements are still current, then this means they are constrained from taking any Enforcement action because of s78(6) of the Consumer Credit Act 1974.

[cadwallader]

Again, thanks vint1964. YEs, the example you show is pretty much the same as mine and are from the same year. However, i still think there is no clear connection between the terms & conditions page anf the application page. The terms & conditions seem to be extracted from a different application document as I can't see why the previous address question would be presented as it is. Does anyone have any thoughts on this?

 

BTW, this form was received in response to a SAR request - I am still waiing for the s78 CCA response.

 

Thanks again

 

C

Edited July 20, 2009 by cadwallader

[cadwallader]

Bump

[vint1954]

Again, thanks vint1964. YEs, the example you show is pretty much the same as mine and are from the same year. However, i still think there is no clear connection between the terms & conditions page anf the application page. The terms & conditions seem to be extracted from a different application document as I can't see why the previous address question would be presented as it is. Does anyone have any thoughts on this?

 

BTW, this form was received in response to a SAR request - I am still waiing for the s78 CCA response.

 

Thanks again

 

C

Yes, they are probably 2 documents. The likelyhood is that they only have the front on microfich.

 

They would need to produce one document in court, the origonal.

 

You could write back to them informing MBNA that the document sent is not complient as it is in 2 parts with no references on P1 to P2.

 

If they have threatened any form of court action, request a copy under CPR 31.16. This has to be the document that they will bring to court.

[cadwallader]

Again, thanks for your comments vint. I'm sure they have threatened court action as a possibility and I will check when I get home. It's good to know you also think it possible the 2 pages they sent may not both be part of the same document.

 

C

[cadwallader]

Have today received a default notice from MBNA. Looks like they have got the date for remedy right. Can anyone see any defects? What about the fact that they are demanding full repayment of the loan and not the arrears amount?

 

 

 

Thanks

 

C

[TheContendor]

I believe thats an incorrect default notice. They have to give you the option to clear your missed payments / overlimit amount to remedy the excess not just pay the full amount.

[cashins]

I believe thats an incorrect default notice. They have to give you the option to clear your missed payments / overlimit amount to remedy the excess not just pay the full amount.

 

Agree.

 

Mbna usually try and argue that because their current terms and conditions allow this they can do this.

 

Err... the Consumer Credit Act which overides whatever they put in their contract say's they can't

 

David

[middenmess]

Just looked at your CCA.

 

Only my opinion but...

 

As you ticked the box for PPI you should have separate prescribed terms for that as it then becomes a multiple credit agreement.

 

PPI was possibly missold as well so you possibly have 14 years worth of payments to reclaim at their contractual rate of interest which might well add up to a considerable sum.

 

Several threads on the forum about this especially from noomill060 and pompeyfaith.

[vint1954]

They should allow you time to remedy the default, that is missing payments. Requesting the full ballance in a DN, is wrong as this is also termination. Their T&C's cannot overule an act of parliament.

 

The dates are ok if they sent it first class, if they sent it second class, they are a day out

[cadwallader]

Thanks for the comments.

 

Middenmess, I actually ticked the no box for PPI. You had me hopeful there for a moment:)

 

With regards to demanding the full balance outstanding I seem to remember a discussion in a thread about this but can't find it. Does anyone have a link to it please?

 

I've been looking at the CCA 1974 and am a bit confused as to which section specifically says/implies they should ask for outstanding arrears rather than full balance?

 

Thanks again

 

C

[supasnooper]

Don't suppose you've kept the envelope have you ?

 

If you have, keep it safe...if you haven't go and look for it.

 

Normally, the Default Notices from MBNA arrive in a UKMail envelope with an S postmark.

 

Have areda of this link for info on defective Default Notices - B_R_W's post on DN's

[middenmess]

Thanks for the comments.

 

Middenmess, I actually ticked the no box for PPI. You had me hopeful there for a moment:)

 

 

 

C

 

No reason not to be hopeful--doesn't matter that you ticked the box--read threads by noomill060 and pompeyfaith or read noomill060 wrote on my thread at post 34

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/209989-gobsmacked-ease-getting-charges.html

 

and then look at..

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/211244-25-days-late-3-a.html

 

where noomill060 comes in at post 14.

 

Read up about multiple agreements as well.

[cadwallader]

Thanks supasnooper

 

I do have the envelope (at home) and it came via UKMAil but I'm not sure about the S postmark.

 

Interesting post from banker rhymes which you gave the link to. BRW & vint are obviously in accord that this particular Default Notice effectively terminates the agreement. Just wondering if anyone knows if this has been tested in court (not doubting it but with a possibly enforeable CCA am just a little nervous about letting this one run its' course)

 

Many thanks to all for the help

Edited May 26, 2010 by cadwallader

[cadwallader]

Hi middenmess

 

Sorry if I have inadvertantly confused things - I'm not being charged for PPI on this card.

 

C

[middenmess]

Hi middenmess

 

Sorry if I have inadvertantly confused things - I'm not being charged for PPI on this card.

 

C

 

My mistake--brain,eyes and typing finger not working together-LOL!

[vint1954]

Don't suppose you've kept the envelope have you ?

 

If you have, keep it safe...if you haven't go and look for it.

 

Normally, the Default Notices from MBNA arrive in a UKMail envelope with an S postmark.

 

Have areda of this link for info on defective Default Notices - B_R_W's post on DN's

Hi supasnooper. Is s second class?

[vint1954]

Thanks for the comments.

 

Middenmess, I actually ticked the no box for PPI. You had me hopeful there for a moment:)

 

With regards to demanding the full balance outstanding I seem to remember a discussion in a thread about this but can't find it. Does anyone have a link to it please?

 

I've been looking at the CCA 1974 and am a bit confused as to which section specifically says/implies they should ask for outstanding arrears rather than full balance?

 

Thanks again

 

C

My understanding is that they must issue a DN, claiming the arrears first, giving 14 clear days from service to rectify the breach. By demanding the ballance in full, within the DN,you are not able to rectify the breach, meaning arrears on the account. So from the copious ammounts that I have read, the DN seems faulty.

[cadwallader]

Vint

 

Thanks for the reassurance and further explanation

 

C

[cadwallader]

Another point - as the DN from MBNA effectively terminates the account and they have forfeited the right to collect future due payments and can only collect arrears (which are not detailed in the DN) and as the account has, in my view, been in dispute since early May because of non-compliance with my s78 request, does that mean that the arrears I have to pay would be those due as at the date of dispute? (Always assuming the CCA is enforceable).

 

Thanks

 

C