URGENT ADVICE SOUGHT - Snookered by MBNA

[ihpj]

** URGENT ADVICE **

 

Out of the various Creditors I have CCA'd - I never actually expected to get a [positive] result from these of all people!

 

Regrettably, I beleive what they have provided IS an enforceable, correctly formatted and executed agreement

 

But to be sure, I have attach scans of what they have provided (front and back)...

[ihpj]

** ADVICE **

 

On the back page I have blanked out all the information that was filled out and can confirm that I recognise my handwriting and signature in the relevant boxes

 

My situation is that on 16/07 I CCA'd them and heard absolutely nothing. So on 17/08 I wrote to them, putting the account in dispute, and also withheld payment from then on.

 

Then today (07/09) I receive the above bundle, which is way outside the standard 12+2 deadline. My understanding is that the account can remain in dispute while they have do not comply with my lawful request; however the debt becomes enforceable when they do.

 

I would therefore be very grateful if the CAG could clarify:

 

1. Enforceability of their provided CCA.

2. As I withheld payment, they have (no doubt) applied a default late payment charge - but they have been in default only sending the required information now. How can I ask/insist they revert account back to previous state?

3. Any other advice gratefully received...

 

Bugger me, they actually got one right?!

[manxcat2206]

Are you sure they're off the same document? The first page is postmarked 8th September 2000, but the second page is date-stamped November 2000.

[ihpj]

Are you sure they're off the same document? The first page is postmarked 8th September 2000, but the second page is date-stamped November 2000.

 

I hear what you are saying! My signature is dated 05/09 on the document and it is post marked 'West London' on 08/09 - both of which fit in the sense that I must have posted it from my [then] place of work. The 11/2000 date stamp would be concurrent with processing/approval times?

 

To top it all off - both pages appear to be of the same size, print and type font too

[manxcat2206]

Fair enough. Always worth checking with these - they can be a bit sneaky like that. If the dates tie up though, it probably is your agreement. How did you manage to get them to send it though? Was it a standard CCA request, or did you add in something else? I've been waiting months for them to send mine.

 

Have you got all your statements so you can check the APR etc? It has to be accurate. You should be able to do a charges and interest reclaim anyway if you've paid any, and PPI if you had that added. But if you haven't got your statements, you'll need to send them a Subject Access Request to get them so you can confirm anything you've paid that you might be able to claim back.

[ihpj]

The only thing that I can find that provides even the remotest shred of hope is at the beginning of the second paragraph, immediately preceding Points 1 - 15 where it says:

 

Set out in paragraphs 1 - 15 below are some of the provisions contained in Conditions 1 and 2 of the MBNA Credit Card Terms & Conditions. The other conditions referred to in those paragraphs and the applicable definitions can be found in those Terms and Conditions.

 

They specifically and repeatedly refer to these 'conditions' - examples of which can be found in:

 

Point #3 where they refer to a ...payment holiday under condition 2.4.

 

Point # 4(b) where they refer to ...except as mentioned in conditions 2.4, 3.5 and 3.5.

 

Point # 5(a) where they refer to ...except as mentioned in conditions 2.1 and then again Point # 5(b) referring to any charge under condition 13.1....

 

 

...so where are these conditions they constantly refer to? If this document refers to just 'some' of the provisions, what (and where) are 'those' Terms and Conditions then?

 

Clutching at straws methinks :( ?

Edited September 7, 2009 by ihpj

[ihpj]

How did you manage to get them to send it though? Was it a standard CCA request, or did you add in something else?

 

Simple CCA request. Nothing special at all.

[pedross]

In addition the one side has a code at the bottom 03/2000 and the other side 09/2000.

 

MBNA could argue thats what they do but it looks very dodgy to me. A multi-national organisation produces documents of this very poor quality takes a bit of believing even allowing for their incompetence.

 

In addition it says fold here on both sides that is unusual as well. Why does it not refer to the important terms overleaf.

 

I have noticed that MBNA have suddenly started producing double sided documents of dubious content as I mentioned on a Restons thread.

 

Never in a million years do all these appear genuine and if they are not it will be goodbye MBNA when they are caught out.

 

Pedross

[manxcat2206]

Reading it more closely now...

 

The terms on the app refer to conditions 2.1, 2.4 and 13.1. None of these conditions are contained within the app. And there's no reference to when, or if you should have received the full T&C document. I would have thought they might need to send the T&C document referred to before they've completed your request as you can't actually check all the conditions.

 

As it stands, it seems to be referring to conditions that aren't included within the document, although it does refer to a separate document. I'm not quite sure what, if anything, this does to the enforceability of the agreement. Hopefully someone who's seen an app like this before might have a better idea of whether or not that's significant.

[pedross]

The only thing that I can find that provides even the remotest shred of hope is at the beginning of the second paragraph, immediately preceding Points 1 - 15 where it says:

 

Set out in paragraphs 1 - 15 below are some of the provisions contained in Conditions 1 and 2 of the MBNA Credit Card Terms & Conditions. The other conditions referred to in those paragraphs and the applicable definitions can be found in those Terms and Conditions.

 

...so where they? If this document refers to just 'some' of the provisions, what (and where) are 'those' Terms and Conditions then?

 

Clutching at straws methinks :(

 

The other T & C can be in a seperate document. Thats a non starter in my opinion as is the fact that on the one side it refers to condition 11 or something which does not tie up on each side.

[manxcat2206]

Simple CCA request. Nothing special at all.

 

 

Oh well, they must like you better than me then.

[ihpj]

The other T & C can be in a seperate document. Thats a non starter in my opinion as is the fact that on the one side it refers to condition 11 or something which does not tie up on each side.

 

Do you meant CANT be in a separate document?

 

Your point about the about the apparent mis-match of the date appears to be a good observation (and one I missed!). Also re-reading Condition 11, you are right: The back page appears to suggest this refers to data processing but on the front page, Condition 11 specifically refers to not increasing rate of interest on account in its first six months of opening.

 

I fully accept that up until recently, MBNA have been unable or unwilling to produce CCA documents even remotely appropriate. This is part of the reason why I was shocked to get this...

 

Appreciate the input though its given me something...not sure if it will be enough to throw back at them ... :?

[pedross]

I have had another look at both sides and it does look enforceable on the face of it but I am just not sure as mentioned earlier.

 

There is a library of MBNA agreements on the forum you should check with that and see if that helps.

 

The full T & C can be in a seperate document and be referred to which they are but the prescribed terms must be in the one document.

 

The condition 11 thing is not important in my opinion because it refers to condition 11 in the full T & C and points 1 - 15 relate to conditions 1 & 2 only ( prescribed terms).

Edited September 7, 2009 by pedross

[ihpj]

As it stands, it seems to be referring to conditions that aren't included within the document, although it does refer to a separate document. I'm not quite sure what, if anything, this does to the enforceability of the agreement...

 

Thats the way I am leaning.

 

However, on the back page, just above the signature box, there is a group of text (in bold) that reads in part: ... I have received a copy of, and agree to be bound by, the MBNA Credit Card Terms and Conditions... ... not looking good

Edited September 7, 2009 by ihpj

[manxcat2206]

I would be inclined to question the agreement given the different document date references on what they're saying are the front and back pages. But then you're really asking to see the original document as proof that the two pages are from a single document, and I doubt they'll go for that unless you can force them to produce it in court. I don't know whether or not you can keep the account in dispute on this basis though, or even if it's advisable to continue non-payment with an agreement that might be enforceable - can anyone else advise on this point please?

[ihpj]

Well, have browsed this site further and came across THIS that has commentary from Site Team Member PT2537 who appears to suggest that it is improperly executed (IE: not in compliance with S61(1)© CCA) because the referred to conditions are not there...as is the case in mine above.

 

I have also browsed to the MBNA Agreement Library and note the comments for the 2001 agreement; which also mention the discrepancy between Condition 11 on the front and back pages. A very interesting read...

 

So there may be hope then?

[ihpj]

* BUMP *

 

Can anyone else please offer up anymore advice?

[griffin036]

Well I'd certainly question its legibility and the fact that there is no creditors signiature would render it improperly executed. It is obviously a copy of a microfiche document, so in all probability the original no longer exists, and therefore could not be produced in court.

I would persevere with the legibility issue and reply to them along these lines:

 

Dear Sir/Madam,

Re Account: xxxx xxxx xxxx xxxx

Reminder for request for copy of alleged credit agreement under Section 78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true copy of any alleged signed, executed credit agreement in relation to the above account.

I note your response to this request in your reply received on the xxx. Thus far I have only received what can only be described as poor copies of an alleged agreement in which parts of the print are impossible to read.

In support of this I draw your attention to the following:

 

The copy of the agreement you have sent does not comply with the requirements regarding "legibility" under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, which state:

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the

 

 

 

In addition, you have not provided all the documentation required to comply with my s.78 CCA request and whilst in default you cannot enforce the account lawfully. The agreement on its own is not enough as you should be aware, if the executed agreement contains any reference to any other document, you are obliged to send me a copy of that document. Also, a full statement of this account should have been included detailing all debits and credits to the account.

 

Therefore I would assert that this means that you are currently still in default of my request and whilst your default continues, you are not entitled to enforce any part of this alleged agreement.

 

This includes, but is not limited to, the following:

You may not demand any payment on this alleged account, nor am I obliged to offer any payment to you.

You may not add any further interest or charges to this account.

You may not pass this alleged account to any third party.

You may not register any information in respect of this alleged account with any of the credit reference agencies.

You may not issue a default notice related to this account.

 

You have a calendar month from receipt of this letter to rectify your default. Therefore, I must receive fully readable copies of the document I have requested by xxx plus all the other supporting documentation to fulfil my request. If you do not have any fully legible copy of this signed agreement in relation to this account, please confirm this in writing.

I will be making no further payments to this account until this matter is resolved to my satisfaction. It would be a breach of the Administration of Justice Act 1970 for you to continue to take any action against this account whilst this default remains.

 

Please conduct all communication with me regarding this account in writing only.

 

I look forward to your swift response.

Yours faithfully,

ihjp

..............................................................................................

Amend to suit.

[ihpj]

Dear All,

 

Firstly MANY thanks to those who have read and contributed to helping me work through my dilemma. Perhaps the situation is not as irrecoverable as I had first thought - however I do feel that I am in a genuinely compromised/weakened position given that they have provided, on one side of the 'agreement', completed in my hand writing with my signature.

 

So, the question now arises is one of tactics - how do I play this? My thoughts are as follows:

 

1. I should write back to them highlighting my concerns about the veracity, legibility and completeness of the document they have provided. As has been said above, there are concerns about the mismatch of the dates on both sides; the 'missing' T+Cs referred to; the actual legibility of the document (what they sent me is about half size of what I have put up and scanned) and the points raised in particular by PT2537.

 

2. Having then cast doubt on the document, my next move should be to invite them to clarify their stance on restoring my account to its previous state. I would not specifically ask them to remove default sums etc. but rather leave that to them. Remember that although this reply appears to comply, it is well outside of the period of 12+2 working days time frame they have by Law.

 

My understanding is that by complying with my request now, they should by all rights, revert the account back to its original state (IE: prior to my defaulting them). Now I know they will never do this, but my reasoning in asking for this clarification is that any penalty charges they have levied (and do not remove) would be considered unlawful. This will then conveniently form the second layer of my dispute with them because they will (at some stage) serve a Default Notice (not withstanding that the DN may in itself be defective for other reasons) they would include these penalty charges in some way. Thereby rendering the DN defective because they have included unlawful charges.

 

As I sent all my previous correspondence RECORDED I have evidence of what I sent and when...and very importantly, when it was received by them. So they cannot argue they are within the statutory time limits and their charges are lawful.

 

By taking this approach with them, I feel it would give me greater grounds to resist their legal attempts to enforce the debt if it ever goes to Court.

 

I would very much appreciate input on my line of thought please. If The CAG feel this may have some merit, I shall then draft a letter and post it on here for advice before sending it to them. If my logic holds true, then I must hope they serve a DN and terminate the account on the above basis...

Edited September 8, 2009 by ihpj
Typos!

[ihpj]

** URGENT ADVICE **

 

Following on from above - I think my first response should be as follows (cobbled together as suggested by others):

 

----------

 

Thank you for your submission of , that I received on .

 

I can confirm that I am currently studying the material you have supplied, in particular the microfiche copy document that is proving a little difficult to read with certainty and clarity as parts of it are obscured by the large bar code sticker and the overall poor quality of the reproduction.

 

As you appear to suggest the enclosed is a true copy of my correctly executed agreement I would be grateful if you would confirm, in writing, that it is indeed a true copy of both sides of the original executed Agreement. In which case, I shall require sight of it so that I can not only be assured as to its authenticity but also to its content. Because as things currently stand, I have some reservations. For example the document refers specifically to a Condition 11 just under the section entitled 'Important - Data protection'. However when reading the corresponding Condition 11 on the reverse of this document, it relates to something totally different.

 

To this end, I shall be more than happy to travel to your offices to minimise inconvenience to you. However, if you refuse then I expect you shall provide full written explanation as to your reasoning behind declining this reasonable request.

 

I look forward to your reply and certainly not more than 21 days from date of receipt of this Recorded Delivery letter.

 

Yours faithfully,

 

----------

Edited September 11, 2009 by ihpj
Brain Fart! ;)

[ihpj]

** ADVICE **

 

By asking them to clarify whether or not they will restore my account to the pre-dispute position (which is likely they will not) will I then not have unlawful charges on account and coupled with their refusal to remove them makes them unlawful?

 

I think that I should then send the formal objection letter (drafted below) and wait for them to serve a Default Notice (which in itself is more than likely to be defective) and terminate the account.

 

Would this not mean my account will have been terminated on the basis of a defective DN because it contains unlawful charges?

 

I would be VERY grateful for input from the learned members of The CAG PLEASE!

 

----------

 

[DISPUTE LETTER]

 

I write with regards to my letter of in which I exercised my rights under the Consumer Credit Act 1974 s(78 ). The Act allows you 12 working days for a request of a true copy of a credit agreement to be carried out before you enter into a default situation. As I had received neither any acknowledgement nor response, I wrote to you again on highlighting your default.

 

Then, on I received correspondence from you, dated , that appears to be in reply to my original request. I have had an opportunity to note what you have sent and reply as follows:

 

1. On the same document there is a constant reference to other conditions referred to; but they are not enclosed anywhere in the material you have sent me, yet they clearly refer to prescribed terms. Hence all the terms were not easily legible when the agreement was signed. For example:

• Point #3 you refer to a ...payment holiday under condition 2.4.

• Point # 4(b) you refer to ...except as mentioned in conditions 2.4, 3.5 and 3.5.

• Point # 5(a) you refer to ...except as mentioned in conditions 2.1 and then again Point # 5(b) referring to any charge under condition 13.1...

 

What are these terms? What do they state? Do they confer additional rights to me? Do they limit your ability to administer this account?

 

2. The alleged agreement you have provided refers specifically to Condition 11 and you describe this as being Data Protection related. However when reading the corresponding Condition 11 on the reverse of this document, it relates to something totally different.

 

3. One side of the document appears to be dated 09/00 while the other is 03/00. Surely if it is one agreement, both sides should be dated the same and there should be a reference somewhere within the document to the information overleaf. As is stands there is very little to suggest both sides are linked in some way.

 

4. Parts of the document are obscured either by the affixing of a sticker and/or due to the poor overall quality of the reproduction that makes the document difficult to read with certainty and clarity.

 

You have therefore not provided all the documentation required to comply with my request as the agreement on its own is not enough because if the executed agreement contains any reference to any other document you are obliged to send me a copy of that document as well. Consequently, what you have thus far provided is improperly executed as it is not in compliance with s61(1)© of the Act:

 

61(1) A regulated agreement is not properly executed unless:

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

Furthermore, I contend the copy of the document you have provided does not comply fully with the requirements regarding legibility under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, that states:

 

2. Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

As far as I am concerned, this means you still remain in default of my request. The absence of a correctly executed credit agreement is a very clear legal dispute and any legal action you pursue will be averred as both unlawful and vexatious and I shall counterclaim that any such action constitutes unlawful harassment.

 

 

Yours faithfully,

 

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Edited September 10, 2009 by ihpj

[Enron]

If you can't read it, then the following applies, and the creditor has not discharged their obligations under s78(1) Consumer Credit Act 1974 until they provide you with a legible copy:

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed

agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety

under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily

distinguishable from the .

 

Banks as a rule, especially the US owned ones seem to believe they are above the law and operate contrary to regulations. So I doubt they'll pay any notice of your statutory notice unless you are prepared to take it to court and argue, which is a big step.

[ihpj]

** UPDATE / ACTION **

 

Well I've decided to send the THIS letter that I wrote to them tomorrow; while keeping THIS one in reserve

 

I have read THIS thread and as far as I can see, the first page of the that MBNA CCA is almost exactly same as mine, with the exception that the relevant heading on mine is obscured with a barcode sticker. Some interesting feedback on that thread and I would urge others to read it.

 

I am going to fight MBNA as I am sure what they have provided is sketchy at best (Photoshop anyone?) and see what they do...

[ihpj]

** UPDATE **

 

Got a reply from MBNA for the letter I sent. So have now sent them THIS in reply. Guess this one will end up in Court soon...

[ihpj]

** URGENT ADVICE **

 

Today I have received the FOLLOWING letter from Optimistic Legal - in which they are threatening a Charging Order and the like.Now thanks to this site, I know that they will need to get a CCJ before they can proceed down that route...so I perceive this as a threat-o-gram only; but one that I must reply to.

 

I am thinking that I should send them off the letter below as they are threatening legal proceedings:

 

----------

 

Dear Sir/Madam,

 

RE:

 

I write further to your correspondence of .

 

On 16 July 2009 I wrote to your Client, exercising my rights under S(78 ) of the Consumer Credit Act 1974. However they did not reply until 4th September 2009, which clearly put them into a position of default. Based on their incomplete response, it prompted me to raise further queries with them and seek clarification on a number of points – I can confirm that I still await their substantive reply.

 

I am therefore not only bemused by your involvement but also greatly offended by the tone of your letter. I am alarmed by your disregard for the importance of due process, specifically in relation to the issue of enforceability, and your grossly exaggerated claim as to your ability to successfully seek a Charging Order against my property profoundly misleading. There are a number of complex legal hurdles you must first clear before you reach the stage of a Charging Order. Therefore, I can only conclude you have suggested such an eventuality in the first instance in an attempt to unduly intimidate me – in which case your behaviour is morally reprehensible and ethically bankrupt.

 

Turning to the matter of intended legal action, as your client has thus far been unable to produce the relevant documentation, I must conclude that you are in possession of it because as you are aware S(127)(3) of the Consumer Credit Act 1974 makes it clear that a signed document containing all of the prescribed terms is a precursor to enforcement. I now demand you disclose the following, by no later than 4pm on , pursuant to Pre-Action Practise Directions – Protocols 4.6 of the Civil Procedure Rules:

 

1. A true copy of the executed contract and any terms and conditions that applied to the account at the time of opening.

 

2. All records you hold on me relevant to this case, including but not limited to:

 

• A transcript of all transactions; including charges, fees, interests, payment and both the amount of credit and repayments made to the account.

• Transcripts of all telephone conversations recorded and any notes made in relation to these telephone conversations.

• Where there has been any event in the account history over the this period that has required manual intervention by any person, disclosure of any indication or notes that have either caused (or resulted) in that manual intervention, or other evidence of that manual intervention in relation to the account.

• True copies of any notice of assignment and/or default notice or enforcement notice that you sent to me, with a copy of any proof of postage.

• Details of any collection charges added to the account; specifically the date it was levied, the amount of charge, a detailed financial breakdown of how the charge was calculated and what the charge covers.

• Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

• A genuine copy of any notice of fair use of my data - as required by the Data Protection Act 1998.

• A list of third party agencies to whom you have disclosed my personal data together with a summary of the information disclosed.

• Copies of statements for the entire duration of the credit agreement.

 

All of this is information is required because I have reason to believe that there may be discrepancies within the original agreement which may leave it improperly executed. And if this holds to be true, I would then be entitled to ask the Court to consider the agreement and make a declaration of the rights of parties to it. I do not view this as an unreasonable request given that, by supplying the required information it will allow me to assess if my case has merit and help to resolve matters perhaps without the need to involve the Courts and undoubtedly save costs for all concerned.

 

I must also advise you that, if the information is not forthcoming, I will bring it to the attention of the Court that I was denied the opportunity to review my position in relation to your claim of alleged breach of this agreement and any possible counter claim.

 

Yours faithfully,

 

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Edited December 9, 2009 by ihpj
Letter Amended.