Fluffystuff's OH & MBNA

[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

[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.

[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!

[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

[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

[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.

[vint1954]

Read and edit as appropriate

[vint1954]

The bemused letter next. Edit to suit your circumstances.

 

Ref Account xxxxxxxxxxxxxxxxxxxxxxx

Dear xxxxxxxxx,

 

I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your company or client is acknowledged.

 

On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. MBNA have failed to comply within the statutory time limit, or at all. In addition, this alleged account was placed in dispute on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.

 

In the circumstances, your threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to MBNA under s10 of this act. You may wish to refresh yourselves of the implications of ignoring the Data Protection Act.

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 considered vexatious and unlawful. The Court's attention will drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

I would remind you that while this alleged account remains in dispute, that MBNA:

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

I trust this out lines the situation and that you will take note of my comments, to avoid any further breaches of the Law, being committed by you.

 

[vint1954]

Update:

 

No response to CPR request, just repeated requests for payment of either the arrears or whole balance - depends which button they press I guess!

Also received "Important Default Notification" - appears to be a notice of a notice as it does not give date to rectify or contain any other required terms! (Sorry, not able to scan at present.)

 

OPTIMA LEGAL

Received today, Notice of Legal Action, threatening charging order etc etc. Now I'm not phased by this as I know they are out of order but wonder if the 'bemused letter' is appropriate for now or if something a bit stronger is required??

 

Seems they are in breech of the Malacious Communications Act and a letter to the SRA would be in order.

 

Advice appreciated as always.

Hi Fluffystuff,

 

Yes bemused letter to Optima. These people are the pits.

 

Also as you say, complaint to SRA. There is a thread running on this subject

[vint1954]

Yes, that would be correct if they have not issued a DN, but MBNA usually do issue one.

[vint1954]

yes