two MBNA Cards sold to arrows and their CCA returns - Now LInk

[seriously fed up]

I have today had two responses to a CCA request made re two MBNA accounts that seem to have been assigned to Arrow, to whom I also made a CCA request.

 

 

As I could never get anything out of MBNA I suppose I should be in some awe of Arrow for managing to do something that I could never do.

 

I have attached the main elements of what they sent me as pdf files

- files 1 and 2 are for "first" account and 3 and 4 for the "second" account.

 

Taking them one at a time

the "first" account paperwork seems to me to suffer from a number of problems but in particular,

 

 

1. its plainly an application form. Now I have to admit it doesnt helpfully say that at the top - strangely its been blanked out (not by me, I would add) - but if you look at where i have signed on the second document (effectively the second page) it begins "Please open ..." As such it offends Section 59 of the CCA
   
2. if you look at the bottom of the second page, there is a sig box for the lender, which most unfortunately they have forgotten to sign so the account has never been properly executed at any time, I would have thought
   
3. they have attached some T&Cs to this,but plainly this is another document (so not within four corners) and in any event they plainly arent contemporary to the agreement as they say the overlimit/ late payment "fees" are £12. This account was opened in 1998 and I dont think that was the fee at that time. Could this be fraud?
   

 

Similar problems for number 2

 

1. it does helpfully say that its an application form so absolutely no doubt there so section 59 applies
   
2. there is no sig by the lender - indeed unlike the above, there isnt even a sig box for the lender so not properly executed?
   
3. on the other hand, they could make out a good case that the second page (file 4) is the back of the application form and this does cover the main requirements - credit limit, repayments and rate of interest. So a little concerned about that.
   

My immediate inclination is to send them the

"sorry but these dont meet the requirements of the CCA" letter for the above reasons.

 

 

Does anyone have any comments that they might want to add either where I have missed anything, or where I might just be a teeny bit wrong.

Thanx as always:-)

[sunflower99]

If that were me i would send them a letter saying that what they have sent you does not comply with proof they got an enforceable agreement ,

and that is just an application form,

 

 

I am also in dispute with MBNa and they sent me an application form they are trying to pass of as a correctly executed cca.Good chance that your one as it is a very early one been shredded and they relying on a microfilch copy

removed template - dx

 

i sent them the aboce letter to make it clear i cosidered account in dispute

[seriously fed up]

Dear all,

a few days ago I got the paperwork in the attached two files from Link

- its for an old (1995) card with MBNA.

 

I have sent them a letter telling them that I think its unenforceable

 

 

1. its an application form so void under s59 of the CCA 1974
   
2. MBNA have never signed it, so how can it be agreement - admittedly there is something that looks like a stamp,but that's all
   
3. it looks as if they have actually sent me the original - not a copy - and the T&Cs (img001) is on a separate sheet of paper - ie another document) so what they suggest is the agreement lacks prescribed terms (sorry img is so unclear, but its the best my scanner can manage - but you can see the section headings clearly enough, I think). I also quoted Mitchell v BoS at them.
   

I have also had someone from Link phoning me to "talk about this matter" despite being told that I would only deal with it by letter.

 

 

They suggested I am being "unreasonable".

However in the course of the conversation

(I actually put the phone down once and they phoned RIGHT back

- I mean like within seconds)

the guy said that what they had sent was "the best we have" or "the best we could do"

 

Can someone with more experience of Link and MBNA agreements advise me if I have got what they sent me right or if I am heading for a fall on this one.

Thanks

SFU

[dx100uk]

when was the last time you paid anything?

 

dx

[seriously fed up]

must be more than a year ago

[dx100uk]

ok so no statute barring then!

 

stay off that phone too!

 

i'm not up on the logistic of enforcable or not, but if yoiu tink it is not then maybe make a very low f&f to close the matter.

 

dx

[seriously fed up]

how low might a very low F&F be?

[dx100uk]

10%

have you reclaimed charges and mis-sild ppi yet?

 

dx

[seriously fed up]

have already reclaimed the charges, after the usual argy bargh, and there was never any ppi to reclaim. Really a question of how to "put it to bed".

The kind of sum you mentioned was roughly what I was thinking about - maybe start off at 4 or 5%, expecting to have to go to 10%.

Have to see what sort of strategy they adopt.

Do you have any views on my points 1 and 2 in my letter to them - ie this isnt an agreement, its an application, and MBNA havent signed it anyway. :-?

[dx100uk]

you really need to stick to one thread about each debt, i notice that you have several regarding this mbna card, make life so much easier on knowing what/what not you have done or been advised.

 

but give 10% a go.

 

dx

[angry cat]

NO,

 

Not 10%;

2.5% and that is too generous!

 

In any event, why would you offer anything, if the alleged agreement is irredeemably unenforceable?

 

Link Financial are chancers...

 

However, at the end of the day, the choice is yours.

 

AC

[angry cat]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162255-link-financial-limited-53.html

 

Post Number 1060

 

AC

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162255-link-financial-limited-53.html

 

Post Number 1060

 

AC

 

makes ref to this thread?????

 

anyhow , make the offer to the OC and it should close the matter but start very low.

 

dx

[angry cat]

makes ref to this thread?????

 

anyhow , make the offer to the OC and it should close the matter but start very low.

 

dx

 

That is because the thread relates to the Link Financial Fan Club!

 

Remember, if you make a F&F Offer, you will be acknowledging the debt.

 

AC

[dx100uk]

but i dont think the op is disputing the debt

 

if the cca is unenforcable, it dont make the debt go away.

 

dx

[angry cat]

but i dont think the op is disputing the debt

 

if the cca is unenforcable, it dont make the debt go away.

 

dx

 

Then, it is up to the OP;

throw the towel in or, to;

stand up for their Rights under the CCA 1974.

 

A word of caution though, when dealing with MBNA/Link Financial nothing is, as it appears to be...

 

AC

[dx100uk]

stop confusing the OP

there are no 'rights' to stand up for in this case, he has not been paying of recent and already understands he does not 'have' to pay monthly wise or put up with being chased

 

an unenforcable CCA is not some magic bullet that wipes debt out, it just means it cannot be enforced in a court of law.

a CCA could turn up by the time statue barring become effective.

 

making an low [not the full value of the debt] F&F with the condition that no-one can further chase that which is outstanding after, will close the matter.

 

dx

[seriously fed up]

Why would I pay them anything if they have an unenforceable agreement?

I am disputing the debt, for the avoidance of doubt,

 

 

but I would consider this course of action, to get rid of the bar stewards once and for all.

 

2.5% would be about £75 - 10% would be £300.

Is that worth even avoiding court papers coming in, even if they withdrew before court?

That's all a matter of personal preference,

isnt it - though even more a matter of whether you have the cash, and right now that could be difficult.

 

I am very aware that this is the beginning of a road with Link and we need to see how it pans out.

 

 

They might look at what I have said in my letter and decide that I am right

- or right enough

- and decide to throw their hands in.

 

 

But as AC observes,

they are chancers and I doubt if they will.

 

 

We all know this kind of thing is like a gun fight, and its about who blinks first.

 

IF I DID go down the road of "buying them off"

- and that is what it is

- there is no need for me to acknowledge the debt.

 

 

It is enough that I recognise we (Link and myself) have a difference of opinion and that I am prepared to make some sort of token payment

- totally without prejudice

- to bring this matter to an end and in return they make a clear and unequivocal statement that my payment is full and final settlement of the matter both with them, their heirs and successors etc etc.

 

I am equally aware that this is "supping with the devil" and to do this I need a long spoon.

 

 

The purpose of this post was to begin the process of finding a long spoon (and a spoon long enough - not the same thing) to do this.

 

 

I am not about to throw in the towel (I couldnt afford a towel!) - just working out the options in advance.

 

NO,

 

Not 10%;

2.5% and that is too generous!

 

In any event, why would you offer anything, if the alleged agreement is irredeemably unenforceable?

 

Link Financial are chancers...

 

However, at the end of the day, the choice is yours.

 

AC

 

With great respect dx, I dont think I have done this.

 

 

1. this is my only thread re Link
   
2. I DO have another thread re Arrow, which is very similar in that both involve old MBNA cards and the paperwork has recently turned up.
   
3. In both cases - Link and Arrow - the issues on enforcability are similar (not really a surprise as both cases are MBNA), but involve separate lenders - perhaps both pond life, but still not the same.
   

I dont think separate threads were unwarranted.

If you think otherwise then, of course, I apologise.

 

However,

I have raised in a couple of places the issue of whether an application form constitutes an executed agreement that a Court could enforce.

 

 

If the answer to that is "no" then, obviously it puts me in a much stronger position.

 

 

My view on this is that an application form is void

- ie there is no agreement.

Moreover, the fact that MBNA never signed the application form

- there is something that might just be a stamp

- it sure aint a sig

- also suggests to me that there has never been an agreement, executable or otherwise.

 

 

Problem is that I cant get an answer.

On the other hand, I dont know if there is an answer, or not a definitive one.

 

you really need to stick to one thread about each debt, i notice that you have several regarding this mbna card, make life so much easier on knowing what/what not you have done or been advised.

 

but give 10% a go.

 

dx

[dx100uk]

no no, fair comment i realised that earlier...sri didn't post it up!

 

keep going

sterling job!

 

you will beat them .....all of them!

 

dx

[seriously fed up]

thank you for the vote of confidence. It IS appreciated.

But is there anyone out there who can offer a reaonably authoritative answer about s59? :-?:?

[WelshMam2009]

Ok, I also have several MBNA cards (not by choice but because MBNA bought them up) and all have been passed to several different DCA's, one being LINK.

 

Looking at the agreement SFU, it is such poor quality, that I'm unclear whether or not the prescribed terms are actually included on the first page with your signature.

 

The second page does not appear to be linked to the first either. Note the way that it has been folded over in the corner. Doesn't make much sense to me.

 

As it stands, this CCA doesn't appear enforceable as I would be inclined to dispute the debt.

 

I've sent off letters regarding phone calls and home visits to Link and haven't heard from them in several months to date. I'm not naive enough to think that this situation won't change, but you have to be prepared to take the rough with the smooth when you go along this route.

 

I read on another thread that these companies don't like paperwork as it takes too much manpower to reply...such a shame that I'm a letter writing sort of a person!!

 

Best of luck!!

[angry cat]

Have you got a valid complaint against Link Financial?

 

If so, post it up here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/222298-complaints-link-financial.html

[seriously fed up]

had a letter today from Arrow Finance (letter in attached files) who bought a debt that was assigned to them by MBNA.

 

 

However, some time ago I CCAd them for the agreement and got back the items attached

- named form 1 and 2

- as well as standard t&cs (t&cs 1-4) separately,

which look nothing like t&cs that would have been attached

(for one thing it was originally an Alliance & Leicester account

(and supposed agreement refers to A&L)

but the t&cs refer to MBNA (and not A&L).

 

 

Moreover their alleged agreement is an application form,

has no reference to credit limit,

interest rates or repayment details

(ie no prescribed terms).

 

 

But as you will see from their letter they intend to collect.

I was just looking for some advice

 

 

1. does anyone have experience of Arrow - or similar tactics used by others?
   
2. when they say they "intend to collect", the implication to me is that they intend going to court, but on the basis of any reading of CCA 74 they dont seem to me to have a hope. Would anyone care to comment on that? Or might they mean other tactics (eg incessant phone calls)
   
3. they suggest that I approach court for a declaration, but I am not minded to do that when their paperwork is so poor. Or am I missing something here?
   

If someone could give me a bit of advice on any of these questions that would be great.

Thanks

Serriously Fed Up

 

these are the last two pages of the T&Cs sent - only five files per post!

[vint1954]

Hi, seriously fed up,

 

The application form is unenforcable, as the prescribed terms are not just misstated, they are not there.

 

Arrow can say what they wish, however they have purchased a pup.

 

Time to get a little stronger with them.

 

Send this first class recorded and signed for.

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

 

Further to my request under the above act, your attention is drawn to the fact that this account is 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 alleged 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 an application form, devoid of any prescribed terms and a further set of unrelated terms and conditions. I have previously advised you of the provisions of s59 of the Consumer Credit Act 1974, which apply in this case. In addition, you seem to have supplied documentation for an account number which I do not recognise. The documents that you have supplied, cannot be linked to any agreement which you claim that I have signed and 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, xxxxxxxx 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 xxxxxx 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.
  

Let me explain for you, 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.

Edited October 2, 2009 by vint1954

[vint1954]

had a letter today from Arrow Finance (letter in attached files) who bought a debt that was assigned to them by MBNA. However, some time ago I CCAd them for the agreement and got back the items attached - named form 1 and 2 - as well as standard t&cs (t&cs 1-4) separately, which look nothing like t&cs that would have been attached (for one thing it was originally an Alliance & Leicester account (and supposed agreement refers to A&L) but the t&cs refer to MBNA (and not A&L). Moreover their alleged agreement is an application form, has no reference to credit limit, interest rates or repayment details (ie no prescribed terms). But as you will see from their letter they intend to collect. I was just looking for some advice

 

1. does anyone have experience of Arrow - or similar tactics used by others?
   
2. when they say they "intend to collect", the implication to me is that they intend going to court, but on the basis of any reading of CCA 74 they dont seem to me to have a hope. Would anyone care to comment on that? Or might they mean other tactics (eg incessant phone calls)
   
3. they suggest that I approach court for a declaration, but I am not minded to do that when their paperwork is so poor. Or am I missing something here?
   

If someone could give me a bit of advice on any of these questions that would be great.

Thanks

Serriously Fed Up

You can expect plenty of letters and threats from them, but they are very unlikely to go near a court with that paperwork.

 

I trust that you are not paying them anything at present.

 

Also look back through your paperwork for a Default Notice, a termination notice and a note of assignment from MBNA plus the confirmation from arrow that they have purchased the debt.

 

It is so annoying when large corporations try to mislead those that are unaware of the law:-x

 

Take control and don't wory unduely. ( Large G&T )