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Please could I have your help on the following please;

 

A Bit of history.

 

on 30/06/09 I sent for a copy of my CCA to MBNA. On 22/07/09 I sent a default notice to MBNA. I heard nothing until I received a letter chasing the minimum payments I had been holding back.

 

By return, I wrote explaining that as MBNA had failed to supply me with my CCA I was not liable for the debt.

 

On 09/09/09 I recieved a copy of my application form together with my address, the date (24/07/97), my bank details and my signature. it is clearly an application form although is does say; 'This is a credit agreement regulated by the consumer credit act 1974. sign it only if you want to be bound by its terms'. Which I have signed.

 

It does not state the APR, the credit limit or the repayment terms.

 

the size of the application form is A5 size.

 

I do not have a scanner I'm afraid.

 

In addition to this are photocopied T and T's on 4 separate one sided sheets of A4 paper.

 

The interesting thing is, is that the address they have printed on this, is my current address which I have lived at since 2001. the application form was filled out in 09/1997!

 

Am I to assume that MBNA do not have the CCA I requested?

 

In view of this, would you sugest i write back to them or just wait until I hear further from MBNA?

 

The covering letter from MBNA says, they enclose a copy of my executed agreement. My UP TO DATE terms and conditions. (Why can't they sent me a copy of the original ones)?

 

Thank you in advance.

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Please could I have your help on the following please;

 

A Bit of history.

 

on 30/06/09 I sent for a copy of my CCA to MBNA. On 22/07/09 I sent a default notice to MBNA. I heard nothing until I received a letter chasing the minimum payments I had been holding back.

 

By return, I wrote explaining that as MBNA had failed to supply me with my CCA I was not liable for the debt.

 

On 09/09/09 I recieved a copy of my application form together with my address, the date (24/07/97), my bank details and my signature. it is clearly an application form although is does say; 'This is a credit agreement regulated by the consumer credit act 1974. sign it only if you want to be bound by its terms'. Which I have signed.

 

If you can post this it would help. However if you are sure that there are no prescribed terms on this application, then it fails. Is it just one side of the application that they have sent.

 

It does not state the APR, the credit limit or the repayment terms.

 

the size of the application form is A5 size.

 

I do not have a scanner I'm afraid.

 

In addition to this are photocopied T and T's on 4 separate one sided sheets of A4 paper.

 

The interesting thing is, is that the address they have printed on this, is my current address which I have lived at since 2001. the application form was filled out in 09/1997!

 

Just a reconstruction intended to mislead

 

Am I to assume that MBNA do not have the CCA I requested?

 

Probably not

 

In view of this, would you sugest i write back to them or just wait until I hear further from MBNA?

 

Letter below

 

The covering letter from MBNA says, they enclose a copy of my executed agreement. My UP TO DATE terms and conditions. (Why can't they sent me a copy of the original ones)?

It cannot be an executed agreement. They probably do not have an original.

 

Thank you in advance.

 

Have a look here also

 

http://www.consumeractiongroup.co.uk/forum/mbna/199752-mbna-application-agreements-now.html

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only a generic agreement which cannot be linked to any executed agreement which you claim that I have signed and a set of again unrelated terms and conditions. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974. I have to date only received terms and conditions from yourselves.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

  • You may not ask for payment against this account.
  • I am not obliged to offer any payment against this account.
  • You cannot register any data with a third party.
  • You cannot take any enforcement action, including registering Defaults.
  • You cannot pass the account on to a third party for collection.
  • You cannot sell the account.

What is a true copy:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

 

 

 

Edit the above as appropriate

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wjg, I'm in a very similar position to you,vint provides good advice.

I sent in a cca request in june but they constantly ignored it and spent 3 months ringing and harassing me despite the fact i put the account in dispute they've continued to add charges and interest.

This i have learned is standard practice for the american bank,you're welcome to have a look at my thread as its rolling ahead of yours,eventually they sent out a cca to me,looks non enforceable and also sent a default letter the same day !

So you can see what we're all dealing with here,follow vints advice and a quick search on mbna and defaults will throw up loads of similar stories.

good luck and keep ur chin up,i'm by no means well versed it it all but thanks to vint and many others i'm learning fast.

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Thanks to both vint 1954 and blueotter.

 

I do not have a scanner to be able to post the application form up on here.

 

There are definately no prescribed terms on the application form.

 

The application form is purley this, an application form. It is A5 size with a serated adge which would have had to of been cut and then folded in half and stuck together then posted.

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Agree with vint,sounds unenforceable and you may as well dispute it as i'm doing.

 

Off topic (sorry wjg) although its very relevant to a mob like mbna.

Vint,

Have you had a look at this http://www.consumeractiongroup.co.uk/forum/make-do-mend-what/219897-valid-reasons-credit-card.html#post2433727

 

It's a very interesting subject that's been raised regarding the unlawful practice of hiking up interest rates to obscene amounts.I'm trying to give it a higher profile as it affects all of us and is one of the primary reasons for my problems.

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From citizen B's link

 

Comments : Around this time, MBNA did cock-up the Prescribed Terms. A common mistake was on the Minimum Payment Prescribed Term, as MBNA used to add a series of exception clauses to them...i.e. exception clauses that were to be found within another Document!

 

That stuffs them, as the Prescribed Terms cannot be found in another Document...they must be contained within the four corners of the Agreement.

 

On the Platinum card T and C

 

' The minimum payment shown on the statement will be the greater of

[a] 2% of the account balance as shown on the statement or

£5 or the account balance as shown on the statement if less than £5

except as mentioned in conditions 9.4 , 10.5 and 10.6 there isnt a condition 9.4 , 10 .5 or 10.6 on the T & C

 

Also in other parts of the T & C there is a mention of condition 9.1 , 9.4 , and 14.1 and these arent there either in fact the last condition on the T & C is condition 12

 

BUT

 

There is a paragraph above condition 1 that says

Set out in paragraphs 1-12 below are some of the provisions contained in conditions 8 and 9 of the MBNA credit card terms and conditions . The other conditions referred to in those paragraphs and the applicable definitions can be found in those terms and conditions.

 

AND

 

On the front of this Platinum application form in the paragraph above ' your right to cancel it says

 

' I have received a copy of and agree to be bound by the MBNA credit card terms and conditions.'

 

Also on the T& C for the Platinum Card the interest for retail transactions is only quoted as a monthly figure but Cash advances is quoted on an unreadable table but in APR form.

There is no obvious link between the two pages.

 

Further debate on this application form can be found in the following link from post 21 onwards

 

Advice on 2 CCAs please

 

Also see Note 1: in Post 3 absence of default charges.

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Agree with vint,sounds unenforceable and you may as well dispute it as i'm doing.

 

Off topic (sorry wjg) although its very relevant to a mob like mbna.

Vint,

Have you had a look at this http://www.consumeractiongroup.co.uk/forum/make-do-mend-what/219897-valid-reasons-credit-card.html#post2433727

 

It's a very interesting subject that's been raised regarding the unlawful practice of hiking up interest rates to obscene amounts.I'm trying to give it a higher profile as it affects all of us and is one of the primary reasons for my problems.

Yes, it is a rotten situation.

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  • 1 month later...

Does anyone have a template letter to respond to MBNA now they have issued me with a 'Default Notification' bearing in mind they have not produced a valid CCA?

 

Thank you.

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  • 2 weeks later...

I have another question.

 

If it does go to court and the Judge finds in favour of MNBA, am I then obliged to pay just the repayment arrears I have been withholding or, would the full outstanding debt be required to be paid in full?

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If it goes to court MBNA will probably seek the whole amount.

 

They will put their case, you will put your case. The judge will consider both arguments and make an informed decision - how much, when and how the figure has to be paid. It's impossible to second guess.

 

What makes you think they will pursue through the courts?

:!:Don't believe them! The wool they try to pull over your eyes is 50% cotton. :!:
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If it goes to court MBNA will probably seek the whole amount.

 

They will put their case, you will put your case. The judge will consider both arguments and make an informed decision - how much, when and how the figure has to be paid. It's impossible to second guess.

 

What makes you think they will pursue through the courts?

 

 

I just want to be aware of what the 'worst case scenario' might be if it did go to court and I lost.

 

I have recieved a letter from Optima Legal asking if I can forward an Income and Exdenditure form together with an offer to MBNA.

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I just want to be aware of what the 'worst case scenario' might be if it did go to court and I lost.

 

I have recieved a letter from Optima Legal asking if I can forward an Income and Exdenditure form together with an offer to MBNA.

I thought that you were disputing the validity of the agreement. If so, then don't send I&E or acknowledgement of debt to Optima.

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I thought that you were disputing the validity of the agreement. If so, then don't send I&E or acknowledgement of debt to Optima.

 

 

Thanks vint. Could you explain why I shouldn't send an I&E or an acknowledgement of the debt? I am happy to make an offer to bring the matter to a conclusion ASAP by making an offer. I don't see why acknowledging the debt could be an issue as they already have my signature on the application/agreement form, allbeit an incorreclty excecuted one in my opinion.

 

Thanks.

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Thanks vint. Could you explain why I shouldn't send an I&E or an acknowledgement of the debt? I am happy to make an offer to bring the matter to a conclusion ASAP by making an offer. I don't see why acknowledging the debt could be an issue as they already have my signature on the application/agreement form, allbeit an incorreclty excecuted one in my opinion.

 

Thanks.

If you are happy to make an offer, then that is fine.

 

You will be acknowledging the debt, but if you are not contesting the agreements enforcability then that won't matter too much. apart from resetting the SB clock.

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If you are happy to make an offer, then that is fine.

 

You will be acknowledging the debt, but if you are not contesting the agreements enforcability then that won't matter too much. apart from resetting the SB clock.

 

 

Thanks vint, I do appreciate your help and assistance. I am contesting the enforcability of my agreement. I was hoping that if I was to make an offer to bring the matter to a conclusion, MBNA would be more likely to accept an offer rather than to go down the route of selling the debt on to a DCA. Or the time taken and costs involved to MBNA. I am trying to limit negative CRA reports.

 

As i am fundamentally challenging the enforcability of my agreement, should I, in your opinion make no offer and stick to my guns? (I am prepared to come to an agreement with MBNA of about £5000. My debt is for nearly £18000).

 

I would like readers to know that my debts were as a result of my failed business which I had had for 24 years. The debts were built up from paying staff and suppliers. My total debts were in excess of £55000 and with a combination of re mortgaging and cashing in an edowment policy I am left with MBNA. I would also like it to be known that a took no drawings from the business during the last 18 months of trading. I have now found a job working for a competitor paying a reasonable salary.

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Thanks vint, I do appreciate your help and assistance. I am contesting the enforcability of my agreement. I was hoping that if I was to make an offer to bring the matter to a conclusion, MBNA would be more likely to accept an offer rather than to go down the route of selling the debt on to a DCA. Or the time taken and costs involved to MBNA. I am trying to limit negative CRA reports.

 

If it were me, challenging enforcability ( which I am ), I would stick to the script as it were. Making them an offer at this stage, is most unlikely to have any effect. They will have reported your missed payments to CRA's and if you have received a DN they will trash your credit file. Also, if you partially settle, then this will be reported also.

Any offer that you decide to make, should be headed without prejudice. This should also be accompanied by a letter stating that the agreement is unenforcable. Do not start at £5k. Also it would need to be conditional on a Full and Final settlement, with CRA reporting removed.

The final descision has to be down to you though, just be careful with MBNA, slippery beggers. Keep everything in writing.

 

As i am fundamentally challenging the enforcability of my agreement, should I, in your opinion make no offer and stick to my guns? (I am prepared to come to an agreement with MBNA of about £5000. My debt is for nearly £18000).

 

Start at £3500 if you feel you need to make an arrangement, but this is unlikely to get them off of your back. They do not normally cncider a reduced amount until they have defaulted you.

 

I would like readers to know that my debts were as a result of my failed business which I had had for 24 years. The debts were built up from paying staff and suppliers. My total debts were in excess of £55000 and with a combination of re mortgaging and cashing in an edowment policy I am left with MBNA. I would also like it to be known that a took no drawings from the business during the last 18 months of trading. I have now found a job working for a competitor paying a reasonable salary.

I know what you mean. I have had credit cards for 37 years, since the days of Access, when you just got one through the post! This year, owing to redundency, for the first time in my life, I have not been able to meet my CC payments. They have treated me obismally, which is why I am fighting them.

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Thanks vint. I genuinely do appreciate you help and advice. I also appreciate, ultimately it is a decision I have to make.

 

I wish you all the luck in the world and truly hope you are successful against MBNA.

 

Thanks once again.

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Start at £3500 if you feel you need to make an arrangement, but this is unlikely to get them off of your back. They do not normally consider a reduced amount until they have defaulted you

 

I thought that was normally the case but MBNA wrote to me last week offering to reduce the amount I owed to close the account! I haven't replied yet as this was my first go at getting my CCA. I used Ratio money and they have been dealing with it. I have taken on the Marbles card I have myself and think i'm doing a better job on my own!

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