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

[seriously fed up]

thanks for your quick reply and advice Vint, and I will do as you suggest and send that off to them tomorrow.

However, perhaps I should have gone a bit further back, because the CCA came back a few weeks ago and I sent them this:

 

 

Thank you for your response to my request under the Consumer Credit Act section 78.

In your response you confirm this as a true copy of the original agreement allegedly executed by MBNA on the 14th October 1998.

 

As you must realise what you have sent me does not conform to a number of requirements of the Consumer Credit Act 1974 and does not fulfil my request for a properly executed agreement.

 

1.The document you have sent me is clearly an application form. As such it offends section 59 of the Consumer Credit Act which makes quite clear that any agreement, without further documentation (i.e. a properly executed agreement) would be void. For your convenience I quote the relevant part of the Act below

“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.

Thus the alleged agreement that you have sent me is void through section 59.

 

2.The lender – in this case MBNA - have never signed the documentation – see box at the bottom of page 2 of the documentation sent to me. The agreement therefore has never been executed

 

3.Even if it was not void and had been properly executed, the alleged agreement lacks prescribed terms-specifically, credit limit, repayment arrangements, and rate of interest. Thus it offends section 65 (1), which says

An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only

However the Consumer Credit Act s127(3) specifically prevents any Court from enforcing an improperly executed agreement in cases where the prescribed terms are missing.

 

4.You have attached terms and conditions to this application form, but these too are deficient in terms of the requirements of the 1974 Consumer Credit Act and its associated regulations. In particular

 

a.The Consumer Credit Act Regs (SI 1983/1553) make clear in Schedule 1 that various matters in the agreement should be specified BEFORE the signature box and not merely attached. In this respect, I would refer you to the recent case (June this year) of Bank of Scotland v Mitchell, in which the Court held “a credit agreement is only binding if it is a single document that has been signed by both parties and contains all the prescribed terms.”

 

b.The document you sent me, purporting to be the Terms and Conditions of the alleged agreement cannot be the Terms and Conditions applying at the time the alleged agreement was entered into, as they state the late payment/ overlimit fees to be £12.00, when at the time the agreement was allegedly entered into, the fees were £5.00 and £15.00. However, as you have sent these documents in response to my request, these Terms and Conditions may not be substituted in any subsequent legal action.

I am granting to you a further 21 days to produce a copy of an executable agreement. After that I will consider that the above account is closed and that you will no longer pursue the alleged debt. After this period you should close the file and cease processing any personal data relating to me on this matter.

 

I have said these things to them already. I think the thing that threw me was that they would send a letter like that armed only with these kind of documents. But, your suggested reply, with its additional points, will be in the post tomorrow. I suppose the only route forward is to keep saying "no".

 

Thanks again for your advice

 

sorry to be back again so soon, but I was just looking through the (somewhat large pile of) papers

I have had from MBNA, and I began to notice something a bit odd with the account numbers.

 

Today's letter from Arrow is about an account which ends 9048.

I have been through the papers I have about both the A&L accounts I had (though they were managed by MBNA) and neither of them finished 9048 (or even close to that).

 

 

So that set me looking further, and I found that the only reference to the account number that Arrow refer to on the paperwork that they have sent has been written in by someone afterwards.

 

 

Moreover an account number has been written (in boxes there for this purpose) into the application form which they claim is an agreement - but this isnt the reference used by Arrow either. Neither is it a number that I recognise.

 

At one time, I had five cards with or managed by MBNA (I know ), and looking at the CCAs for the four they have sent me back, ONLY ONE seems to have an account number that is recognisable to me.

 

 

I have at least one statement that they have copied to me, where the account that has been written across the top doesnt correspond to the account number on the statement.

 

Does this matter? What they have sent me back does have my sig on it, but in three of the four cases the account numbers that they quote are just wrong. But, like I say, does this matter, and if so in what way or how much?

[vint1954]

They do this sometimes when the account has been charged off. They use a new account number to sell it on.

 

That is a problem for the new purchacer. No agreement in that account no.

 

I will go back and alter the letter.

[vint1954]

altered

[seriously fed up]

thanks Vint - letter going off this PM. Will get back to this thread when/if i get a reply/ reaction

[postggj]

Just Dropping In

 

Now Why Does This Case Mirror My Dealings With Mbna And Arrow

 

Next Step Will Prob Be A Letter From Marlin Then Mortimer Clark Sols

 

Well They Are One And The Same

 

I Tied Them Up Through The Court Process For Six Months

 

Case Thrown Out And 400 Quid Costs I Got

 

They Just Do Not Have The Corrct Info

 

Did Mbna Default You Or Was It Just Sold To Arrow And Then Arrow Defaulted And Terminated The Acount

 

Ill Just Sit In The Back Roung And Drop In From Time To Time

 

If You Get A Letter From Mortimer Clark, It Wont Be A Solicitor But

 

Litigation Assistant

 

They Have No Sols

[seriously fed up]

MBNA defaulted and then sold it on (never told me about this, mind you). Dont remember a default from Arrow. In fact when they "appeared" the first thing I did was to CCA them and the rubbish that i posted above came through in due course, i told them it was rubbish and then this letter.

Mortimer Clark might be a wee bit problematic, as, having Googled them, they seem to be solicitors in England and an English court wouldnt have jurisdiction in my case - though this is not to say that that would put them off (though an awareness of the Civil Jurisdiction Act should).

Like I said to Vint, I think the thing that shocked me was that they must know how rubbish their paperwork is but they are still trying it on. :-?:?

Thanks for the advice, which I will follow.

[Roger_Ahoy]

Hi, SFU,

 

I note that you have the case of the multiple card and conflicting or unrecognised account numbers.

 

Please see my thread, where a mid 90's application form somehow became a 2006/7 MBNN AMEX Card!

 

http://www.consumeractiongroup.co.uk/forum/mbna/219739-mbna-90s-agreement-enforceable.html

 

With help from others on here, I have reached the view that , if and when proceedings are issued against me , I should IMMEDiately make a formal request under CPR 31.14 (covered thoroughly on this site).

 

This will produce "all of the docs upon which you intend to rely in court" etc. Of course, later on, in proceedings, full disclosure would require the production of the same BUT 31.14 gets is all earlier on and poss saves the Allocation Questioinnaire / Directions etc as it allows the parties to measure the odds.

 

Evidentially, MBNA (or in your case "arrow") will -surely - have to show a clear, unbroken documentary audit trail all the way from that first, ancient application form right through to the current account number on which they have started proceedings. This would be hard enough for MBNA...but for a Numpty DCA .........? R.

 

 

thread here: http://www.consumeractiongroup.co.uk/forum/mbna/219739-mbna-90s-agreement-enforceable.html

[seriously fed up]

For me it would have to be an Incidental Application, which is determined by the Sheriff, who could say "no" if he feels that it wouldnt advance the case, so maybe not as "automatic" as CPR.

The whole thing about changing account numbers actually only occurred tome last night when I realised that the account numbers I used when dealing with MBNA werent the same ones I was using with Arrow. Interesting point that Vint makes on your thread that its "new account number, a new agreement", so I will certainly bear that in mind in any dealings that I may have with them. However, mu own situation isnt quite as ridiculous as yours - at least they only changed my account number. They didnt "transfer" me to a whole new type of card! :? But its another bit of ammunition

[seriously fed up]

This thread actually spans across issues in two others - one my own (http://www.consumeractiongroup.co.uk/forum/mbna/223302-account-assigned-mbna-arrow.html#post2473884) and the other by Roger Ahoy (http://www.consumeractiongroup.co.uk/forum/mbna/219739-mbna-90s-agreement-enforceable.html). In order to keep the issues separate, though I have started this other thread.

I have suggested in a couple of places that s59 means that an application form cant be an agreement because s59 voids it. On Roger's thread (above) Ida from Fife made the point that application forms have been treated as agreements, and I am sure she is right about that.

On the other hand on the same thread, Vint makes the point that " it boils down to the placement of the signature. If the signature is on page one and the prescribed terms on page 2, then it most probbably cannot be easily enforced. However if the signature is on page 2, that is you would have had sight of the whole document before signing, including prescribed terms, then it is accepted in court."

I think this is right and that is supported by the attached 1983 regs (1983/1553). I set this out once before (http://www.consumeractiongroup.co.uk/forum/general/211210-consumer-credit-act-regs.html) but no one replied (perhaps too much length). Basically if you look at Section 2 of the regs (copy attached), and go to subsection 4 it says "Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain, shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below". The last item is the signature box, and it has always seemed to me that a great many application forms do not comply with this requirement of these regulations. This, it seems to me, is legal support for Vint's (and my own) pov.

What I posted for Arrow (see ref to my thread above) is just hopeless, but I have attached here another alleged agreement that I was sent by Link - there are two pages - the document titled page 1 is page 1, and page 2 is ehhhhhhhhhhh ...... If there is a prescribed term before my sig on page 1 (which I have obliterated, but IS at the bottom of section 11 on page 1) I dont see it. Yes they are on page 2, but that comes after the signature. So, even if we assume that the two pages were presented at the same time (they are separate bits of paper btw - page 1 does look authentic - but I am really not sure about page 2), it would seem to me that this is not enforceable.

Some views would be very much appreciated on this.

[vint1954]

This was from a cag members defence.

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

25. It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

[vint1954]

This posted previously by angry cat. I have also read somewhere, that the creditor is bound by the documents that he sent you when lawfully requested. So if you receive a set of terms and conditions as a "True Copy " then that is what they have to use in court,

9 BREACH OF THE ACT OR REGULATIONS

 

9.1 If a creditor does not give the debtor an annual statement in respect of a

fixed-sum credit agreement when he is required to do so, then he is not

entitled to enforce the agreement during the period of non-compliance. In

addition, the debtor is not liable to pay any interest calculated by

reference to the period of non-compliance, or any default sum which

would have become payable during that period or which relates to any

breach occurring during the period.68

 

9.2 Similar consequences apply if the creditor fails to give a notice of sums

in arrears under a fixed-sum or running-account credit agreement.69

 

9.3 If the creditor fails to give a default sum notice, he is not entitled to

enforce the agreement until the notice is given.70 If the creditor fails to

give a notice of post-judgment interest, he is not entitled to charge

interest until a notice is given.71

 

9.4 Where a creditor fails – on request and upon payment of the appropriate

fee by the debtor - to provide the information required by sections 77-79

and 97 of the 1974 Act, the creditor is not entitled to enforce the

agreement whilst the default continues. If the creditor fails to provide

information relating to any security, pursuant to sections 107-110, he is

not entitled to enforce the security instrument.

 

9.5 In addition, the OFT and Local Authority Trading Standards Services

have powers under Part 8 of the Enterprise Act 2002 to take

enforcement action where there is a breach of legislation which harms

68 Section 77A(6) of the 1974 Act as amended

69 Section 86D of the 1974 Act as amended

70 Section 86E(5) of the 1974 Act as amended

71 Section 130A(2) and (3) of the 1974 Act as amended

OFT1002 29

the collective interests of consumers.72 Enforcement action may also be

taken where appropriate under the Consumer Protection from Unfair

Trading Regulations 2008.73

 

AC

you cannot prove it UNTIL they take you to court- but if they do and they do not provide the SAME agreement that you have a "true copy of" (minor discrepancies apart), but instead produce some document that is substantially different then there are two possibilities

 

1/ the true copy they first sent you clearly was no such thing - which as i said makes them in default of s77/79 therefore the proceedings that they are currently engaged upon are unlawful and this should be argued in defence to the claim OR

 

2/ it is the same document (with minor faults) in which case- if it is enforceable and compliant- then you would have known this from the true copy they sent you and presumably therefore you would have "done a deal" regarding repayments before it got to court!!

 

if it is basically the same document and you feel it is defective then you would be pre armed with your defence anyway

 

the only way you can be at a disadvantage or taken by surprise is in being supplied with a document in support of the claim which is not the same as the true copy they have provided as in 1/ above

[seriously fed up]

thanks Vint, that's really useful, because I am 110% sure that MBNA sent me no notificiation of assignment EVER, which if I pick up s136(1) correct, and the reference there to an assignor (in this case MBNA) they should have done.

All I got from Arrow was a letter saying "we own this debt now, cough up". Nor was this sent registered post - indeed, I think I am right in saying that I have NEVER had a notice of assignment that was sent by registered post/ recorded delivery - just an ordinary stamp. The first time I remember anything sent registered was when they sent the CCA "agreements".

Am I right in this - that there should be notification by the OC telling me that they were selling the debt. Basically all i have ever seen are letters claiming to have bought the debt and looking for payment. I mean, if I know who you owe money to, I could set up some nice looking note paper and send you a letter claiming to have bought that debt and demanding payment? Is the letter from the OC - sent by registered post - a necessary part of the process. It looks that way to me, and some support would be nice. But only if you think I am right. Put another way, does anyone know how points 23 and 24 stood up on the day.

[postggj]

arrow, well it was marlin in my case tried to make out the acount was sold to arrow with out it being defaulted and terminated by mbna,

then marlin sent such a poor default termination notice

 

my 8 year old nephew could have done better

 

after tying them up in knotts for six months in court

 

game over

 

they huff and puff but realy have not got a clue

[seriously fed up]

Bump

Does anyone have an opinion on this?

Thanks

SFU

[car2403]

This goes back to the argument that the prescribed terms should be contained with the four corners of the agreement.

 

For me, if they are part of the same document and can be proven to be such, it's enforceable. I understand others think that they have to be on the same page as the signature, but I think that's a over zealous interpretation of the wording available.

 

By the way, I'd steer away of s.59 - an agreement void under s.59 would mean that the parties would be returned to the state they were in prior to entering in to the contract, which would mean the creditor returning all payments made and interest charged, while the debtor would have to return all benefit gained under the agreement, including any advance made under it.

[seriously fed up]

OK thanks.

Just one thing about the possibliity of the parties being returned to the same state as before a void agreement. If it is an old agreement and payments have been maintained over a relatively long period with the credit limit pretty much used up, then it MIGHT well be - with interest rates at 25% - that this kind of sum could well mean the bank having to pay out. If you have really only being paying out on a card for more than four years, its perfectly possible that you have paid back any advance. There is though an element of risk.

I can also see what you mean about the interpretation of being overly zealous, but if you look in the regs and in particular 2(4), you will see that it says there (and this is a direct copy, though the emphasis is my own)

"Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain, shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below"

Paragraph (f) is "the signature box and, where applicable, the separate box required by paragraph (7)(b) below;" - in other words, it might be argued that to follow these regulations, an agreement should follow the pattern of presentation set out in regulations 1983/1553.

Moreover, why would the signature be last? Perhaps so that the prospective debtor should have read (or been required to at least pass over) all the other requirements for a properly executed agreement - nature of agreement (a), parties (b), key financial information ©, other financial information (d), key information (e), before getting to the space for the debtor to sign. How many - and I am thinking in particular of documents that are in fact only application forms really - would meet that requirement?

Moreover the "four corners" rule is a widely applied legal rule "holding that if a document (as a contract, deed, or will) appears on its face to be complete no outside evidence may be used to challenge it" (legal dictionary at dictionary.com) - but the regs are specific to the CCA 1974 and it would seem to me that that is an argument for the regulations to take precedence.

Please note too that these are two separate defences - void under s59 - and non-compliant with regs 1983/1553.

Edited October 4, 2009 by seriously fed up

[car2403]

Ah, right, be careful with that one, as an agreement that doesn't comply with s.60/s.61 (including the Agreement Regulations) will be improperly executed, but only agreements missing the prescribed terms from the signature document would be irredeemably unenforceable under s.65 due to s.127(3). (Pre- 7 April 2007 agreements)

 

I suppose you're right in that if you've repaid more than the advance you could recover everything else, but I still think it's dangerous and could backfire if the calculations go against you. It would be worth taking professional advice before considering/embarking on that, IMHO.

[seriously fed up]

OK thanks for getting back (again) - maybe its this bee buzzing about in my head?

Take your point about the difference between not being compliant with the regulations (and s60/61) and the court not being able to enforce due to 127 because the prescribed terms are missing from the signature document. I suppose then the whole thing revolves around what is meant by "the signature document". Could it not be contended that as para 2(4) of the regs specifies a range of information requirements ending with the debtor's sig, that THAT is the signauture document.

I know there are no definite yes/no answers to that. I dont know if its been tried in court. But it does seem to me to have some sort of standing in a reasonable interpretation of the 1983/1553 regs, and could be weapon to hold your creditor at bay as, if its not certain and risky, there is uncertainty and risk for them as well. So, if it keeps it out of court then it has achieved something.

If someone has tried this in court, I would LOVE to hear from you.

Oh, and about doing the calculations first - absolutely - BUT if you have/had a whole raft of cards that were basically a millstone (ie you were paying out but because they were at their limit you couldnt spend on them) it could be worth THINKING about. Again, though, because its risky and uncrertain, the bank might not want to try its luck.

[car2403]

The Act outlines what the agreement should contain, referencing the Regulations, and the consequences of not containing them, along with the Court's powers in each instance.

 

The Regulations outline how the agreement should be laid out, including information, formatting and emphasis to bring details to the debtors attention.

 

This might help;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/159697-order-prescribed-terms.html

[seriously fed up]

thanks Car2403 - I think that's basically what I have been trying to clarify for myself. In particular Tifo's posting that "that's the assumption, i.e. the four corners of the signature page. This is so that it is clear to you before you sign. The agreement itself can be many pages as part of the document." :grin:

[MBNASlayer(1)]

Subbing.

 

I have the same issue with MBNA. Signature on front page and T&C's on reverse but not refered to on page 1.

[seriously fed up]

Are you dealing with MBAN? My debt has been sold to Link. I dont know if this is likely to make a difference to what happens next. :?

[angel_1]

hiya all

am subbing as ive had one of mbna sold to link too so another battle commences

 

will read this more thoroughly later

 

have a sunny day all laters angel x

[vint1954]

This goes back to the argument that the prescribed terms should be contained with the four corners of the agreement.

 

For me, if they are part of the same document and can be proven to be such, it's enforceable. I understand others think that they have to be on the same page as the signature, but I think that's a over zealous interpretation of the wording available.

 

By the way, I'd steer away of s.59 - an agreement void under s.59 would mean that the parties would be returned to the state they were in prior to entering in to the contract, which would mean the creditor returning all payments made and interest charged, while the debtor would have to return all benefit gained under the agreement, including any advance made under it.

The point that I was trying to make was that the signature would need to come after the prescribed terms within the agreement, page one if the terms were there, page two if the prescribed terms were on that page. An unscrupulous person could say sign here on the front page, while denying the unweary the chance to see the terms overlef.

[vint1954]

And there was this:

 

In relation to position of Signatures and Prescribed T&C

It is clear that s61(1)(a) is referring to the prospective regulated agreement, so that its requirements must be fulfilled by that document and not just by another document to which it refers”: Goode, Consumer Credit Law and Practice, paras 30.102-30.103.

 

This is interpreted by John McCloud, PhD, LLB, Barrister, Professor of Law, University of Liverpool:

 

On the same side as the signatures the document itself must contain the terms prescribed in the Agreement Regulations [Reg 6(1)]. To the extent that these rules refer to information which must be stated ‘together and as a whole’, that will ensure the larger list is included in the actual agreement rather than any document referred to in it.