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    • lets cut to the chase, HB,  Christmas is Cancelled,  it already is by the Wee Nippy in Scotland it seems, where she is talking of a Zoom Christmas. so record a parody Christmas song.  Zoom Christmas a parody of Bing Crosby White Christmas I might just do that today Fire up the DAW plug in the mic
    • @honeybee13I genuinely think Boris is confused about what to do. Economic disaster v even more unexpected deaths.    I see what you mean, UB, but is it possible that dithering since September means that lockdown will be longer and cost the economy more than if there had been a two or three week circuit breaker a few weeks ago?   I'm interested to know why it's going to be on Wednesday, so quite a wait from it being known, albeit through two newspapers and not an announcement yet. France had a day or two's notice of their second lockdown.  
    • I'm trying to understand the whole story.   However it would help if you would identify the companies you have been dealing with
    • @honeybee13I genuinely think Boris is confused about what to do. Economic disaster v even more unexpected deaths.    The big problem with this virus is that many people have very mild symptoms or no symptoms at all, but can still pass on the virus to others.    And with winter bugs having some similar symptoms to CV-19, there are probably thousands in workplaces with CV-19 who just don't know they are risking others lifes.   If Government are going to lockdown the country for a period, it has to be really strict and that includes schools and Colleges.  They should have done this in a planned way around the half-term period.   
    • So you have been receiving more messages and threats??  This is what they do.   You are starting to feel nervous and worried??  That's why they do it.   Are you starting to think it might be better simply to pay???  Then it's job done.
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CCA received - please help!!


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I've just received a copy of my CCA, and it looks like it is okay to me.

 

can anyone pick any holes in it? (my scan may not be too legible, but the copy I have in my hand is okay).

 

Because my 'agreement' is an application form, does S59(1) apply, or does S59(2) override it in my case? - I don't understand what S59(2) is saying to be honest!

 

Does it matter that the prescribed terms are on the back and not on the same side that I signed?

 

MBNA now think they have settled my request under S78, so they are no longer under default. If I continue to withhold payment, do they still have to produce the CCA in court, and does it have to be the original item? or will microfiche (or copy of) suffice? Because they are no longer under default, do they even need to present the CCA to a court to get me to pay?

 

Is it likely that MBNA only have a microfiche? And would this count as evidence?

 

Another point, that whilst they have been in default, they have continued to add interest and charges, and they are now demanding payment of several months worth of payments that I've withheld whist they were in default. Surely CCA prevents this as they were in default, in which case, if I decide to give up, what is my minimum payment as their statement is now incorrect? Can I withhold payment on the grounds that my statement is still incorrect?

 

I've read loads of posts on this site, but the more I read, the more confused I get. Please help! I really don't know where I stand.

Edited by boingy
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Sorry, but your scan is not legible and could you please rotate it to it can be easily read ;)

 

Yeah, sorry, I didn't realise quite how bad those scans were. I've deleted them for now and will upload some new ones over the weekend, when I borrow a friends scanner.

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Don't suppose anyone would be kind enough to look at the above scans and give me their opinion on the enforceability of my CCA?

 

I'd be so grateful if someone was also able to address my concerns in my first post?

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what year is the application form from (my priority app form I had was from the year 2000) and they did not bring the orig to court when I attended in July (case still ongoing!)

 

The cred limit, repayments /Apr were not on mine, feel free to look at my thread http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-court-papers-help-required.html post #107 had my app & t&c on... if it helps

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I would take the same view as you re s59. The problems are that

 

  1. not everyone agrees
  2. it has never been tested out in court, as far as i know

On the other hand, do MBNA want to take that chance. It would blow the biggest hole if it did stand up, as how many void agreements would there be then?

I would also agree with you re the ordering of terms - following the 1983 regs (SI 1983/1553) and in particular Schedule 1, there is a very precise order of information to be given for an agreement and the last item is the debtor's sig. Again, I am not sure if that has been argued in court, far less whether it was successful, but as they want lose about as much as we do, it might be enough to keep them at bay.

MBNA - and all the rest of them - will spout any old nonsense rather than admit that you are right. But if you can create doubt in their minds then that is something. If it goes to Court a "true copy" which will satisfy an S78 request, will not be good enough - it has to be the original. I have to say I am not sure if a microfiche copy would be adequate at that stage.

Sincer they are never wrong, of course they will add interest, fees and anything else they can think of to increase the size of your debt. Whether, if it gets to Court, a Court would allow them to do this is, at the very least, questionable (very).

 

I've just received a copy of my CCA, and it looks like it is okay to me.

 

can anyone pick any holes in it? (my scan may not be too legible, but the copy I have in my hand is okay).

 

Because my 'agreement' is an application form, does S59(1) apply, or does S59(2) override it in my case? - I don't understand what S59(2) is saying to be honest!

 

Does it matter that the prescribed terms are on the back and not on the same side that I signed?

 

MBNA now think they have settled my request under S78, so they are no longer under default. If I continue to withhold payment, do they still have to produce the CCA in court, and does it have to be the original item? or will microfiche (or copy of) suffice? Because they are no longer under default, do they even need to present the CCA to a court to get me to pay?

 

Is it likely that MBNA only have a microfiche? And would this count as evidence?

 

Another point, that whilst they have been in default, they have continued to add interest and charges, and they are now demanding payment of several months worth of payments that I've withheld whist they were in default. Surely CCA prevents this as they were in default, in which case, if I decide to give up, what is my minimum payment as their statement is now incorrect? Can I withhold payment on the grounds that my statement is still incorrect?

 

I've read loads of posts on this site, but the more I read, the more confused I get. Please help! I really don't know where I stand.

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This agreement dates back to 2004.

 

I've spoken to someone at MBNA today, who obviously didn't know their consumer credit act from their sales of goods act, and I've pretty much said that I want to pay off the debt, but because they have been adding interest, charges and missed payments (which they can't do according to the CCA as they were in default), the statement is incorrect, and shows a minimum payment which is about 4x what it should be. (x4 because it took them four months to respond to my S78 request).

 

Problem is, can I get away with witholding payment until they send me a corrected statement? I can't afford their incorrect stated minimum payment, but how much do I send? If I don't send the minimum payment they are requesting, they are going to continue harassing me and putting black marks on my credit file, and failing to acknowledge my letters.

 

Maybe I should send them a token payment of a few pounds each month, with a letter reminding them of their error, and repeat until they either correct the error, or issue a court summons.

 

I also have an issue with the APR. The Consumer Credit regs 1983 (which were in force at the time of my agreement) regulation 2(6) states:

 

(6) The APR referred to in paragraphs 15 to 17 of Schedule 1 to these Regulations shall in documents embodying regulated consumer credit agreements, other than exempted agreements--

(a) be denoted as "APR" or "annual percentage rate" or "annual percentage rate of the total charge for credit; and

(b) where it is subject to change, be accompanied by the word "variable".

 

The back of my application form (ooops, I mean credit agreement), doesn't use this word "variable" at all as required by 2(6)b above, although they do use the words 'change' and 'vary', but not next to the APR rate. I might play on this (via the FOS) to try and get my interest rate reduced, and request that MBNA credit the excess interest they have been charging me for the past x years. - I dare them to argue this in court without the original CCA!

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  • 5 weeks later...

The problem with S59 is that no one has tested it (or not as far as I know - if someone knows better/ different, then please let me know). But far as I can see this is for sure a preceontractual application form - for instance "If your application for this credit card is approved....." about half way down the front page. Following s59, it would be void.

The problems are:

  1. I understand that application forms have been accepted in Court as agreements. However firstly I dont know if "this is an application form so void by s59" was argued. Secondly, there is the "four corners" issue, or whether that the two bits of paper that you have posted - being front and back you tell us - have your signature at the end or not. What I am getting at here is which of the two scans is front and which is back. If I were MBNA I would argue that what you have termed the back is actually the front and that the creditor would read the t&cs, go on to the back page (what you have termed the front page), fill out their details, and then sign at the end. What you would argue is that you put your details on the front (as you have put it), signed there and never looked on the back (what they would term the front). If you know what I mean :?:

  2. its hard to know how a court would look at this. The best legal opinion I have seen is that " 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." (Bank of Scotland v Mitchell June this year). Had they sent what you have called the front and back as separate documents (I mean only on separate bits of paper), then that would be a different matter - I think then they have had it. THe problem is that your T&cs and "application"/"agreement" are on two sides of the one page - so where do you start?Also I dont see any "no-nos" like references to some other document not provided. There might be an issue about their APRs as they charge a handling fee, but I dont think that's going to deter a court. Others with more experience of MBNA might want to look at this.

This might seem pretty bleak, but remember, I am saying no more than that MBNA might be able to enforce this - but they might not. Do they want to take that chance? Is there a possibility of negotiating with them - a F&F settlement perhaps?

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