Mum v mbna

[mystery1]

Please help. Looking for advice on cca from mbna regarding enforcability.

 

 

Thanks

 

M1

[vint1954]

The first 2 pages seem to be enforcable, if they are the front and back of one sheet.

 

The rest are just up to date terms and conditions.

[mystery1]

Hi thanks for looking.

 

I think the only reference to a credit limit is under the other cards section so uneenforcable ?

 

I've been researching myself a bit now that i need to.

 

Does the signature of a rep count for mbna signature ?

 

All opinions welcome though as many hands make light work.

 

Thanks

 

M1

Edited September 12, 2009 by mystery1
extra question

[sunflower99]

Hi Mystery

I am not a expert on CCAs but unfortunatly like Vint says this could very well be an enforceable one though dont take my word as gospel and MBNA have been known to imply by the way they display paperwork that things are overleaf when they are not! However the fact that this is a more recent account ie 2005 when there is more chance they probably getting wise to the unenforceable CCA issue, increases chance this is an enforceable one. Also they have got the heading right in respect that they say this is a credit card agreement. Another thing is they state on bottom of your page of ts and cs and prescriberd terms in bold black print about your application form being overleaf and asking you to put your name and address on it and sign it,So there is a definite reference to the application form being on reverse of it,So i do worry that in this case it may be enforceable ,However hopefuly other people will be along to comment as well who are expert on ccas.I may also be completly wrong.

Edited September 13, 2009 by sunflower99

[Old Cogger]

Your terms & conditions are not as when you took out, states default £12 charges 2007 on-wards if im correct?????????????

[sunflower99]

Hi Mystery

They have included their more recent ts and cs as they normally enclose those as welll but what they imply is on back of application form is reffering to some orignial ts and cs and prescribed terms plus they do state £25 on the original terms they are alledging is on back of your application form,though it is a bit of a struggle to read as it is very small print,

[mystery1]

Having checked again it does say the credit limit info on the credit card agreement.

 

The application form and agreement are back to back.

 

I'm thinking this does comply with the section 77/78 request but i'm wondering about the mbna signature as they only have a sales reps signature and that may make it unenforcable in court ?

 

Thanks for the help so far.

 

M1

[sunflower99]

Hi mystery

Only my thoughts as i am not an expert on ccas but i think a person can sign on behalf of the crediter as a mbna rep

[vint1954]

Hi Mystery,

 

Your CCA, section 1 refers to how the credit limit should be set.

 

The original default charges were £25.

 

It seems to be enforcable, but in court, they would have to show that as one original document.

 

If it is signed by a duly authorised person from MBNA, then thats OK. This would only represent a minor point to a court.

 

Vint

[mystery1]

Thanks. I'll tell her to keep paying and sar them.

 

M1

[mystery1]

Still waiting but after a fair bit more research sending this tomorrow.

 

Dear Sir/Madam

 

ACCOUNT NUMBERS: x

 

Account in Default

 

 

Thank you for your recent letter dated 4th September 2009, the content of which are noted. However, your reply does not fulfil your requirements under the Consumer Credit Act 1974.

 

78 Duty to give information to debtor under running-account credit agreement

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

 

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

 

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement.

 

 

 

 

 

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter. My request remains outstanding for the following reasons.

 

1. The agreement sent states “see the rest of your terms and conditions (including definitions) which are in the leaflet provided”

 

This leaflet is missing.

 

2. The agreement states under the heading YOUR RIGHT TO CANCEL “ Once you have signed this agreement you will have a short time in which you can cancel it. We will send you exact details of how and when you can do this.

 

The exact details that were sent are missing.

 

3. The agreement states under the heading KEY FINANCIAL INFORMATION “ we will choose your credit limit and tell you what it is. We may vary it at any time and write to let you know.”

 

There is no letter to state the credit limit.

 

 

Those 3 items were all refered to in the agreement you have sent and should have been sent to comply with my request.

 

 

Furthermore, you should be aware that a creditor is not permitted to take any action against an account whilst it remains in default. The lack of these documents is a very clear default and as such the following would apply:

 

 

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

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

• You may not pass the account to any third party.

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

• You may not issue a default notice related to the account.

 

 

 

M1

[sunflower99]

Yes dont seee any harm sending them that letter callng thier bluff and stating what they have missed out!

[DemandFairness]

Hi Mystery1,

 

So what happened after you sent your letter in reply to MBNA's letter of 4 Sept 2009 to your mum? Did MBNA give you the further documents you requested under the CCA s78 and did they do it within the 1 month deadline I think you mentioned above?

 

Also did MBNA comply with not informing CRA's etc because of their default in not providing the info to your mum?

 

Thanks as we currently have still not received the CCA s78 information from December 2010 and not sure what to do next given other threads on this forum.

 

DemandFairness

[mystery1]

Never got a reply that i recall. Default was placed before the the default notice expire. There are phone calls and DCA's but no court action yet.

 

M1

[DemandFairness]

Hi M1

 

So did you report MBNA to the Infomation Commissioner for registering a default before your notice had expired?

 

Also, is this 6 years statute of limitations mean they don't actually take court action from 6 years of your default, even though they correspond with you? Or does their correspondence means that the 6 years to being a statute-barred debt has not started yet?

 

Thanks

DemandFairness