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

[car2403]

 

 

An agreement with the debtors signature and the prescribed terms, but is laid out incorrectly, will be improperly executed (s.61(1)(a)) and enforceable only by a Court order. (s.65) The Court isn't excluded from enforcing it under s.127(1) or s.127(3), so that's little help to those folk in that situation.

[seriously fed up]

But Car2403, but there is still the question of "what is the agreement"?

Often when CCAd or even SARd, they will send back an application form, but very often that just includes the applicant's biog details - address/ employment/ income/ bank detaiils etc - along with some legal guff, but often (though not uniquely) nothing at all that looks like a credit agreement at all - ie on the sig page there are no prescribed terms.

Along with that they will usually send the t&cs that they say apply. Now leaving aside whether the t&cs they send are contemporary to the signature on the page - or lets say that they are contemporary - there is an issue of what it is that the court can enforce. Is it

 

only the agreement that precedes the signature - for instance the agreeement might well run to several pages, but the signature is at its end, so the clear implication is that even if you chose not to read it all, that is what you are signing up to

 

the agreement and the T&Cs, where these are clearly separate documents - ie the agreement (or application form includes your sig but no prescribed terms) and the T&Cs are within separate documents.

 

In these circumstances, could it not be argued that the agreement (or application form) is a separate document from the T&Cs.

 

This would be my view, though based mainly on the Mitchell (v BoS) case where inter alia the judge says ""The key words in Section 61(1)(a) are the reference to a documentitself containing all the prescribed terms, and conforming to the regulations under Section 61.

 

This language is clear and specific, and ensures that mere reference to terms contained in another documen twill not suffice. The document must contain the prescribed terms, justas the signed document referred to in Section 127(3), which might save the day, must however contain the prescribed terms.

 

The construction contended for by the defendant is entirely consistent with the languageof Section 61(1), and is also supported by Professor Good in his encyclopaedic work - see Good & Consumer Credit Law and Practicevolume 2, 2B 5.121, and see also the comments at 2B 5.247."

 

In other words, if i understand this judgement right, the prescribed terms must be within the agreement - they cannot be attached or dealt with by reference to another document - "the signed document .... must contain the prescribed terms". So

 

"An agreement with the debtors signature and the prescribed terms, but is laid out incorrectly, will be improperly executed (s.61(1)(a)) and enforceable only by a Court order. (s.65) The Court isn't excluded from enforcing it under s.127(1) or s.127(3), so that's little help to those folk in that situation." is, if I may say so, only partially correct - the issue will be how incorrectly the document is laid out. If you look at the 1983/1553 regs you will see that the last item on the agreement is the sig box.

 

I dont think they put this last because it was an after-thought. I think its last because - while we probably all often just zip past the legalese and chose not to read it - by putting the sig box at the end we are either given the opportunity to read the obligations we are entering into as debtors, or to chose not to read it.

 

Either way, its not hidden from us. However, where you sign up, and the T&Cs are on another page, or in another document (or worst of all "sent to you as part of our welcome pack") I think the lender has a problem.

 

Why for instance, do they put the sig on the first page, and then the T&Cs on elsewhere (even on the back)? Could it be because if we read it all we might have had second thoughts? Surely not? But from the look of the Mitchell case, it LOOKS as if the courts might be taking a strict view on these obligations. But, of course they will only be required to take this strict view, if its argued to them.

Other views very much welcomed.

[seriously fed up]

This mob bought two old MBNA accounts about 18-24 months ago - one of them is utterly hopeless (pages upon pages and not a term or condition in sight), the other one a wee bit more worrying, but then they would have to explain the different fonts on each page. In fairness not heard anything from them about either for about a year now. Then yesterday two letters (one for each account) pops through the letter box, advising me that the debt is being assigned from Arrow Global LLC to Arrow Global Guernsey, and that any future queries about either account should be directed to Wescot Credit Services in Hull.

Has this happened to anyone else?

Is this a further example of financial machinations? Am I being securitized (again?)?

Is it something I should be worried about (there isnt the usual "pay up or we sent the boys with the machine guns around to see you" threat)?

[blondie46]

I received 2 letters the other day. One was from Nat West informing me they had sold my debt on to Arrow global. I found this very strange because this debt was passed onto Apex of Stratford upon Avon 3 or 4 years ago!! The letter was allegedly from the credit card dept of Natwest, whose head office is in Southend on Sea. This being the case why was the address on the back of the envelope the same as the one from A G, which was a Scottish address?? The second letter was from A G saying I owed RBS/Natwest £xxx.xx. Now as I have already stated, this debt was passed on to Apex and I had been paying them for a while but in 2009 my finances took a turn for the worst so I applied for, and got a DRO and the debt to Apex was on this DRO. This being the case, why are A G asking for payment when the debt should have been written off last year? Can I ignore this letter or should I write and tell them about the DRO and Apex having the debt in the first place? I'm sure they know this and are just chancing it, but I want to be sure ....

Edited April 3, 2011 by blondie46
typing error.

[seriously fed up]

What was APEX's role in this? They chase debts up for existing creditors as well as buying them from OCs and then chasing them. It could be that it was the former (ie that Apex was acting for NatWest) and that its only now that Nat West have decided to sell the debt, in this case to Arrow. Do you know the answer to this? It does sound to me that APEX were 'acting for' rather than in their own interests.

As for the posting address - no idea really. Arrow Global's correspondence address on their website is Manchester. I have checked my two letters and the only address is the new "owner" which is in St Peter Port in Guernsey. Why Scotland, no idea really - maybe its somewhere they use to send out their standard letters (which these sound like).

What puzzles me is why you say "the debt should have been written off last year"? If you have been making payments to APEX till 2009, then you have acknowledged it and it cant be Statute barred yet (would be 2014 in Scotland or 2015 in England). Had you paid the whole thing off to APEX? Sorry if these sound like stupid questions - got the flu just now for one thing so even more stupid than usual.

Might be best to sit tight just now and see what their next move will be. Had you CCAd Nat West to see if they have an enforceable agreement? Long way to go yet, so best not to worry.

[count orlok]

if the debt was on the DRO then it would have been wrtten off after a year. once you start a DRO the creditors are not allowed to contact you (as I understand it). You should contact the people who arranged your DRO, but I am pretty certain thay are not allowed to do this. I mean we all know any firm that holds a CCL would never break the rules!!!!!!!!!

 

What are the dates of your DRO?

 

That said, Blondie I think you should realy be starting your own thread to ask this question as this is seriously fed up's post and people can't practically answer both of you in the same thread.

Edited April 3, 2011 by count orlok

[majorclanger100]

Hi seriously fed up

 

Yeah the same thing has happened to us with an old Abbey (MBNA) credit card - we got the same letter as you. Certainly sounds like financial machinations, as you say - and a bit of the old 'tax efficiency'..!

 

Arrow tried it on with this one three years ago though and are now seriously in the poo. MBNA had (rather stupidly) included an internal memo saying 'the original credit agreement has been destroyed' with our SAR - when the debt was assigned to Arrow we told them to clear off because there was no way they were ever going to be able to produce an agreement. Of course they did try to reconstruct an agreement, but this related to the current MBNA terms and conditions (with the £12 penalty charges), not the 2004 t & cs we had - blatant attempt to mislead. Now they are back and I am very much looking forward to the battle!

 

Good luck with your fights chaps!

 

MC

[seriously fed up]

I have been fighting Link off for some time now. Usual thing - application form with a set of T&C s that couldnt possibly be connected. They were quiet for a bit but have been intermittently a nuisance since about the end of last year. That's all fine. My uncertainty is that I had the statements for this account sent to my working address rather than my home address, and its that address that Link have used for their letter ping-pong. Thing is that today they wrote to me at my home address - its like its all starting again - basically the "hi ya" letter and a nice form for me to tell them all about my income and outgoings. I am not sure what to do about this. It might well be that they got this address from MBNA as it was the address that the account was opened up at originally. But maybe not - fishing expedition? So what should I do:

 

1. ignore it - which was my initial reaction
   
2. express surprise and say nothing to do with me - i can see the unwisdom in that one
   
3. tell them that my position remains exactly the same no matter whether they correspond with me at work or at home.
   

Views as always are welcome.

Thanks

SFU

[IdaInFife]

if it was actually addressed to you personally...not the occupier etc then i would send them your sod off letter

[seriously fed up]

I have an MBNA account that has been sold to Link. There were actually three of them, but havent heard anything about the other two (sold to Arrow) for the last year or so, and the agreements they supplied were just rubbish. However, Link have been more determined and the agreement MBNA supplied to me is about the best I have seen from them, though its by no means clear that they application form and the T&Cs are linked - basically its two bits of paper.

However, to put the thing to bed I offered them 3%, which they have refused (in passing I should say I made this offer back in July and its only this week they got round to making a reply). I am in a bit of a quandry about what to do now. As I see it, I can either

 

1. offer some more - but how far am I likely to have to go with them before they are likely to agree, and doesnt every offer make me look weaker than before?
   
2. dig in and suggest they do their worst. I have appraised them that the document they have put up says "Application Form" at the top, and that the page with my sig has not a prescribed term on it - there would only be a problem if the other page was held to be part of the same document (there isnt even a staple in place, but they are the same size, similar font - but quite separate).
   

So, basically what I would appreciate are opinions on what to do

 

• offer them more, and if so where do Link settle in such cases - i would be pretty sure they got this for 10% of its true value
  
• or is that a sign of weakness (its more a sign that I would prefer to avoid the hassle of going into the court process though I reckon I would win) and I should tell them to do their worst?
  

[dx100uk]

several threads merged.........

 

does this debt show on your cra file?

 

dx

[seriously fed up]

oh yes it does indeed - but, lets just say its a long way from being the only one. The defence of my credit record doesnt loom high since its already well round the u bend .

[dx100uk]

its getting anyone to mark your file 'settled'

with F&F's that is the issue currently.

 

link certainly wont do that i bet.

 

how long since your last payment and how much bal is involved?

 

dx

[seriously fed up]

about 3k - must be at least three years since MBNA got anything. Link never have.

[dx100uk]

have you ever sar'ed MBNA with regard to charges/ppi reclaiming?

 

dx

[seriously fed up]

yes did that two or three years ago - think it was about £400

[dx100uk]

well if you know that the bal has gone up and they have not frozen things

by my calcs that could be £24 every month since then.

 

have you had a recent statement?

 

dx

[seriously fed up]

no statement that i can recall getting from them - tho knowing these people they will say it has been sent.

I am not aware of it going up, though a statement would certainly clear that up.

[dx100uk]

pers i'd sar them

lets get the full picture

 

dx

[seriously fed up]

just for clarity this would be Link i would send the request to and not MBNA?

[dx100uk]

no

always sar the OC

 

dx

[seriously fed up]

actually looking back through my records, I have done this about three years ago now. After a bit of huffing and puffing MBNA paid up (now if someone could tell me how to do the same trick with Cap 1).

I have what they describe as "an agreement" - headed "application form". Along with this - admittedly same size of paper, but otherwise wholly separate - are T&Cs which of course include the prescribed terms. So I suppose the issue is whether they are contained or merely embodied.

I know where the other paperwork they sent me is, and i can look to see if there is a default notice - to the best of my memory there isnt. What they sent were statement copies. I recall an unpleasant conversation with some woman representing them who was very displeased that I wouldnt raise the money to pay them what was owed from a friend or relative (no i didnt record it) and the next thing I heard from Link - it was them who sent the "agreement" which I have been arguing with them about since July 2009.

So, two ways forward that I see

 

1. SAR MBNA and see if a default notice comes up
   
2. negotiate with Link for an F&F (even if they dont repair my credit file - which, as I said would take a lot of repair)
   

Alternatively, see what they might do.

[seriously fed up]

This relates to an old MBNA card debt (opened in 1995) which was sold to Link. Every so when they have been in touch with me seeking payment and I tell them the debt isnt enforceable and they disappear for a bit before reappearing. Now my case with them seems to have gone off to their Welsh office and I seem to have a bit of a rottweiller on my case.

 

 

Typically I have told them that the agreement is an application form and so not enforceable - I know HSBC v Brophy. But the main head of complaint that i have raised is the separation of the sig document from the T&Cs - these have always been sent to me as two separate sheets of paper. I have quoted Tuckey in Wilson and Hurstanger at them, to the effect that the prescribed terms should all be within the four corners of a single document.

 

Also Langan in BoS v Mitchell in which he says "The key words in Section 61(1)(a) are the reference to a document itself containing all the prescribed terms, and conforming to the regulations under Section 61. This language is clear and specific, and ensures that mere reference to terms contained in another document will not suffice. The document must contain the prescribed terms, just as the signed document referred to in Section 127(3), which might save the day, must however contain the prescribed terms. " In short I have argued that they have sent an application form which has my sig but no t&cs on it, and a set of t&cs - show they are connected

 

 

They spend most of their letter rebutting the application form argument and taking me through the 83 regs to show the T&Cs they have sent comply. But when they address my points re Tuckey and Langan, and the connection between the application form and the T&cs , they say something quite interesting

 

 

"As to the cases you refer to we are fully aware of the judgements therein, however your position remains utterly misguideed and for the avoidance of doubt the terms and conditions are part of the Credit Agreement Document, that there is two pages of that document is not relevant.

 

You may consider from reading the front page with your signature thereon, namely your own declaration that there is no requirement that the terms and conditions be signed and it is entirely sufficient that you declare your agreement to them when penning your signature".

 

 

What follows is the ususal litany of threats - we would not wish to enter into futher correspondence - doesnt say they wont - and will now consider referring the matter to our solicitors with a view to .... - doesnt say they will.

What I really dont understand though is the bit I have highlighted in bold since the sig box declaration says "This is a credit agreement regulated by the Consumer Credit Act 1974. Sign only if you want to be legally bound by its terms" Interestingly it also says "Once you have signed this agreement you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by the Bank" which kind of suggests to me it wasnt part of what I signed, suggesting the T&Cs werent part of what I signed.

 

 

Concerning the section before the part I highlighted, Waksman states in Carey (s173)

Agreed Principles

1. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.
   
   (1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;
   
   
   (2) A document need not be a single piece of paper;
   
   
   (3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;
   
   
   (4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;
   
   
   (5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.
   
   

   
   

So following (2) of these agreed principles they are right, but considering (1) there is no reference to T&Cs on the application form. I am therefore inclined to write back to them (notwithstanding they say they dont want any further correspondence)

 

1. pointing to the above in Carey and that they have presented no evidence to the effect that there is a connection between the form and the T&cs sent
   
2. when I signed I agreed to be boudn by the CCA 1974 and that was all it says
   

I would though be grateful if some critical friend could offer an opinion first. Thanks

SFU:???:

Edited July 6, 2012 by citizenB
formatted for easier reading

[citizenB]

I think the acid test is .. were the t&cs presented to you at the time of signing the document. In 99% of MBNA docs - no they werent.

 

I am sure there will many others joining your thread over the weekend

 

BTW - when was the last time payment was made to this account ?

[citizenB]

Harrison v Link is a good read

 

 

Harrison v Link Financial Ltd ALL ER (2011).pdf