Fluffystuff's OH & MBNA

[Fluffystuff]

Hi Everyone,

 

Received the attached together with 2 pages (4 sides) of current T&C's in response to CCA request.

It appears to be a combined application and agreement. (OH's signature is on there.) Seem to remember it was one of those flimsy mailshot leiflets that you folded and stuck down upon return.

 

Would be grateful for your expert views on enforceability.

 

Many thanks.

 

 

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[supasnooper]

Hi there,

 

It appears to be enforceable as contains the prescribed terms.

 

Have a look at these links which may help you on the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

Consumer Credit Agreements

[Fluffystuff]

Thanks for the links SS.

 

It appears that the agreement is enforceable but I have the following queries.

 

1. It doesn't specify the credit limit as a figure, just states "We will choose your credit limit and tell you what it is." Is this sufficient?

 

2. The interest is just expressed as a rate per annum. Should a monthly rate also have been shown?

 

3. There are obviously other T&C's as it states - "Before signing this agreement you must read sections 13-14 in the T&C's provided."

So where would this info have been - it's not on the back of the agreement so if provided, it would have been under separate cover. Should this therefore have needed a signature?

 

4. There is no provision for the creditor to sign. Is the applicant's signature sufficient?

 

Appreciate comments please.

 

Thanks.

[seriously fed up]

the bit about credit limit - "we will chose this and advise" - is, as I understand it, ok, as while it doesnt tell you what it is, it does tell you how it will be determined and that is satisfactory. I think the interest rate can be shown annually, though they can get themselves in a knot over cash withdrawel interest. There will be a "commission" fee (2% in this case), which is basically just another charge. Egg have got themselves in a bit of a knot about this, as the APR should be the cost, but the apr is what they will charge you interest, and then the commission goes on top - and of course if you dont pay it back, they charge interest on the commission. But no, I wouldnt like to explain that one in Court.

What is more interesting to me is the lack of any signature on their part. If this was the outcome of a S77 request then they can get away with sending you "another document with the main terms"| (hence the argument that is often put by them that what they send doenst have to have the debtor's sig), so an application form at that stage may well be ok. But if they are going to take this as far as court, them my understanding is that "another document" is not satisfactory. They (the creditor) have to come up with the real thing - ie the original agreement (ie they have to show what the original agreement was) - and it seems to me that they face two problems here:

 

1. the creditor hasnt signed it. For there to be an agreement, I would have thought that there needed to be two sides and thus two sigs. Many lenders do this - though I have at least two examples where the lender couldnt be arsed to put a mark in their box.
   
2. more contentiously, there is the problem of s59 of the CCA. This says "59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.". Now what I take from this is that to present an application form as an executed agreement is just not on - or to use the phrase in the above it is VOID. There is an interesting discussion about this in another place - Moneysupermarket.com - Making a Claim. And as they say there, what does an application form prove except that I applied for a credit card. Of course not every lender behaves in this way (though many of them do/did). I think that what the CCA intended was that "prospective" debtor puts in application to be considered by lender. At this stage the lender offers up the T&Cs that will apply should the legal relationship be consummated. If the lender goes ahead with the loan then there should be an agreement signed by both that includes the terms and conditions as set out in the 1983 regulations. One of the few who have done this is Egg, though they arguably made a bit of a Horlicks of the document signed at the second stage. What MBNA have sent you is clearly an appliction, though it doesnt helpfully say this at the top of the page (though many do). It does though, to take one example, say "APPLICANTS must be UK residents and over 18"
   

Would anyone with more knowledge than I care to comment on this one. There does seem to be some debate over this. I have seen this view denied by pt2537 somewhere on this sitek, but it doesnt seem to be the view elsewhere.

It is clear that in reply to a s77 request they can send out another document with the relevant T&Cs, but if they proceed to court they should produce the real thing. An application form wont do as its (by definition, I would have thought) pre-contractual and thus void under s59. And if they have anything other than the application form, why wouldnt they send it?

Edited August 22, 2009 by seriously fed up

[supasnooper]

Thanks for the links SS.

 

It appears that the agreement is enforceable but I have the following queries.

 

1. It doesn't specify the credit limit as a figure, just states "We will choose your credit limit and tell you what it is." Is this sufficient?

 

Yes it is

 

2. The interest is just expressed as a rate per annum. Should a monthly rate also have been shown?

 

No requirement for a monthly rate

 

3. There are obviously other T&C's as it states - "Before signing this agreement you must read sections 13-14 in the T&C's provided."

So where would this info have been - it's not on the back of the agreement so if provided, it would have been under separate cover. Should this therefore have needed a signature?

 

Unfortunately, most Judge's will overlook this unless you manage to get a really thorough Judge

 

4. There is no provision for the creditor to sign. Is the applicant's signature sufficient?

 

Yes, a creditors signature is required, but having read a lot of cases here on CAG, most Judges look for a debtors signature, interest rate and a credit limit.

 

Appreciate comments please.

 

Thanks.

 

Hope this helps or not as the case may be.

[Fluffystuff]

Hi Seriously & Supa - thankyou both for your comments.

 

Looks like we're stuck with this then - shame.

 

Might ask them if they can do something about the horrendous interest rate; it's more than doubled since we took the card out!

Are there any letters in the forum to this effect?

 

Nevermind, onwards and upwards - stlll got four more to tackle, hoping to have better 'luck' with them.

[Fluffystuff]

Supa,

 

Have you got time to jump over to the 'Halifax' forum and have a look at my thread there?

 

Fluffystuff's OH & Halifax.

 

Thanks again.

[supasnooper]

have a look at letter E -

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html

[Fluffystuff]

Just wondering if MBNA generally get their DN's correct, in terms of sufficient time to rectify etc?

[vint1954]

Just wondering if MBNA generally get their DN's correct, in terms of sufficient time to rectify etc?

No they do not.

 

Post it up without details.

 

The current problem is that they have sent a raft of DN's out on the 7th Sept, rectify by the 24th Sept. At first look seems fine, until you look at the envelope. Sent using UK mail, s in top right hand corner. This is second class, 4 days, so DN is faulty. They cannot send another:-D

[vint1954]

Thanks for the PM.

 

Had a quick look. Seems that the prescribed terms are there. Something strange though, there seems to be a raft of printing and document codes at the bottom. Could be a reconstruction.

 

Have a look Here.

 

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

[Fluffystuff]

Thanks for looking in Vint.

 

Have gone all through the link you sent above but can't find any 'agreement' the same as ours. As you and others have said, it appears to be enforceable but there is definately something about it that's making me loathe to just give in, particularly as they have refused to lower the interest rate and we didn't receive any letter informing us of the increase, though of course they insist one was sent!

 

I notice that the document codes you refer to, are similar to those in another thread (Mum v MBNA) and this agreement was taken out at around the same time. OR - could be that we made our CCA requests at the same time ????

 

Aside from the points already raised in post #3, also notice that in section 3 (Key Information) they refer to details of other charges being set out in section 4 - there is no section 4 !?

 

Was hoping that somebody could come up with something tangible enough for us to place the account into dispute! (Clutching at straws probably?)

 

The reason I asked about DN's was that OH was thinking about simply not paying them in the hope they would fall foul at that stage - knowing his 'luck' though they'd probably get his notice right !!!

 

Any further opinions greatfully received - even if it's just to say we should put this one to bed!

 

Thanks.

 

 

P.S. Not discounting those opinions already given.

Edited September 16, 2009 by Fluffystuff

[vint1954]

Thanks for looking in Vint.

 

Have gone all through the link you sent above but can't find any 'agreement' the same as ours. As you and others have said, it appears to be enforceable but there is definately something about it that's making me loathe to just give in, particularly as they have refused to lower the interest rate and we didn't receive any letter informing us of the increase, though of course they insist one was sent!

 

I notice that the document codes you refer to, are similar to those in another thread (Mum v MBNA) and this agreement was taken out at around the same time. OR - could be that we made our CCA requests at the same time ????

 

Aside from the points already raised in post #3, also notice that in section 3 (Key Information) they refer to details of other charges being set out in section 4 - there is no section 4 !?

 

Unless they are prescribed terms, that does not matter.

 

Was hoping that somebody could come up with something tangible enough for us to place the account into dispute! (Clutching at straws probably?)

 

The document just looks wrong to me. I take it it was not opened online?

 

The reason I asked about DN's was that OH was thinking about simply not paying them in the hope they would fall foul at that stage - knowing his 'luck' though they'd probably get his notice right !!!

 

Any further opinions greatfully received - even if it's just to say we should put this one to bed!

 

Thanks.

 

 

P.S. Not discounting those opinions already given.

 

You could possibley contest it on it being a reconstruction, if you do not thhink that it is like the document signed.

[Fluffystuff]

Hello again Vint,

 

As far as we can remember, it was a 'mailshot' application - our address was pre-printed on the form.

If we are correct, then the back of the application would have been the 'envelope'. On the back of the document we have received, is an advertisement for 'award points'. Have also looked at other 'mailshot' agreements and the fold lines and tear off edges are visible- there is nothing like that on ours.

So.............................., either we are completely wrong and it wasn't a 'mailshot' appplication or it is as you suggest, a reconstruction!

It does look very good though, definately OH's signature on there and it's my writing in the application section! :-|

 

Is it worth sending a SAR in the hope that it will provide something different or ...................................???????

 

Am watching this :

 

http://www.consumeractiongroup.co.uk/forum/mbna/220416-post-bank-new-post.html

 

What are your thoughts?

[vint1954]

Hi fluffystuff,

 

Yes, they are past masters at photoshop.

 

It still looks suspicious to me. When you see the forms that have been put together professionally, including MBNA's, the lines of text run accross the page, in line as it were. Yours are offset from where the sig box is in column 2, possibly by pasting the signature box in?

 

All of their other genuine forms, start off level across the top and finish with uneven column heights at the bottom. Yours finish remarkably flush along the bottom and the right hand column is lower at the top. Still think that the printing and document codes look wrong and there is no heading to the agreement or form and no MBNA logos.

 

Most of this agreement, is lifted from the current T&C's document, if you check the MBNA agreements link.

 

I would challenge it as a reconstruction.

 

Hold onto this, because if it does come to court, they will need to produce the origonal and if it iis different from this one, well!

[Fluffystuff]

Hi all,

 

Still trying to decide wether it's worth disputing this one so if anybody else would like to offer their thoughts, they would be gratefully received.

 

Thanks again.

[supasnooper]

Fluffystuff,

 

You refer earlier to MBNA Default Notices; they are noramlly defective as they use UKMail postal service to serve.

 

The DN's normally only give a date 14 days from the date of the Default Notice........thus making them invalid.

 

Do you still have yours ?

If so, post it up.

[Fluffystuff]

Hi Supa,

 

Thanks for stopping by.

 

Apologies for any confusion but OH has not defaulted yet - see my comments in post #12.

 

Just really after more opinions particularly in respect of Vint's suspicions that the 'agreement' might be a reconstruction as I believe this might be the only reason to challenge.

[vint1954]

Hi Supa,

 

Thanks for stopping by.

 

Apologies for any confusion but OH has not defaulted yet - see my comments in post #12.

 

Just really after more opinions particularly in respect of Vint's suspicions that the 'agreement' might be a reconstruction as I believe this might be the only reason to challenge.

I think that is the only reason to challenge at the moment.

 

Have a read through post #63 here.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/211306-new-tack-supplying-cca-4.html

[Fluffystuff]

Wow Vint, that is a mega post! Most informative but now I'm feeling just a little so forgive me if i have mis-understood my options.

Could the challenge be that the agreement is not properly executed?

i.e. It is clearly an application form, has nowhere for the creditor to sign,makes reference to a term in Section 4 that is not there as well as further T&C's being in a seperate document ??????????????

Or, if it's just a case of suspecting the document provided is a reconstruction, how would I word a response to this effect?

 

Sorry to appear a bit dim but if OH is to place the account into dispute then we need to be absolutely clear as to why and for us to have something fairly concrete to back up any allegations.

 

Thanks again for your time, much appreciated.

[vint1954]

Hi Fluffystuff,

 

The reasons that I think it is a mock up are:

 

The lines of text do not line up, going accross the page.

 

Genuine forms, start off level across the top and finish with uneven column heights at the bottom.

 

Assuming that it was not covered by you, part of the date at the top is missing, says 09-05, this should be say 07-09-05.

 

There are too many codes at the foot of the sheet. If this was one document originally, the codes would match up date wise. The left hand date code says 06-05, those on the right say 09-05.

 

The text at the top of column 2, lines up near the top but runs out going down to the signature box. This looks to have been inserted. I suspect that the only the right hand side and the signature boxes, have ever been near your original form.

 

99% of MBNA agreements are from an application form. No mention of this or corporate identity anywhere, especially if it was from a magazine flyer.

 

In my opinion, when they issue these as true copies, they realy are pushing the bounds of illegality by intending to mislead, however that is only my opinion.

 

Your so called agreement is in my opinion:

 

1. Improperly executed.

 

2. In all probability a reconstrucion.

 

3. Does not comply in any way to a definition of a true copy.

 

It is up to you how and if you dispute the agreement, however you may wish to concider:

 

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 remains subject to a lawful 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, supplying only a reconstructed agreement from various terms & conditions, which cannot be linked to any agreement which you claim that I have signed. 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.

 

Contrary to your assertion, MBNA 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, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

 

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and MBNA remain in default are:

 

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

What is a true copy:

 

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.

 

 

:mad::mad:

 

Do I hate these people.

Time is not an issue, so do not feel guilty. It may be an issue tonight, as I am cooling a couple of bottles of wine at the moment, not all for me you understand. Mrs Vint does have a small glass.

[vint1954]

And I assume that the column on the right has your name and address at the top. Why would they put it in twice, once there and again printed on the left.

 

Getting angry now with these fools.

 

Time for a lie down in a darkened room. Nurse the screens!

Edited September 21, 2009 by vint1954

[Fluffystuff]

Hello Vint and thanks again for your continued input, very much appreciated.

Just to answer some of your queries:

 

1. The date along the top is complete on our copy.

 

2. As we believe this was one of those "invitation to apply" mailshots, we wondered if the code ending 06-05 could have been when it was sent to OH. He signed and returned it during 09-05.

 

3. OH's name and address are printed in the space at the top of left hand column only.

 

----------------------------------------------------------------------

 

So, have decided that it won't do any harm to send them the letter you have kindly provided and then wait for their response.

Would really love to get one over on this lot - time to fight back.

 

Here we go.....................watch this space.

[vint1954]

The bottom ones are document codes put on at the time of printing. You would not 2 dates on one document, so still looks like a cut and paste.

[Fluffystuff]

Thanks Vint, will update as and when.