abbey/mbna trying to put pressure on!!!

[big.syd]

hi, to all.

i have been reading and trying to learn as much as possible from this fantastic site.

brief history of my case,

have recived illegible copy of ca from mbna, and have requested they send me a copy i can read(will post up illegible copy later).

they have continued to add interest and charges, despite account bieng in dispute.

today i get a letter telling me my credit file will get a default registered at end of sept. At that stage my account will be assigned to debt collection agency and they will persue me for full amount.

card was issued i 2003 by abbey/mbna.

starting to wobble at bit and need the advice of the more expereanced battlers on here.

thanks all, keep up the brilliant work.

[big.syd]

any thoughts on this agreement?

the original is slightly clearer,

21-09-2009 18;02;04.PDF

[big.syd]

i will have to reply to any comments in the morning as i am unable to use

pc in evenings(damn kids on facebook)

thanks for looking.

[supasnooper]

IMO the agreement is enforceable as it contains the prescribed terms.

 

However, There may be a chink in the agreement - if your initial credit limit was not any of the stated limits where Virgin have shown the APR (on the LHS of the agreement ) then the agreement could be unenforceable.

 

Have a look at these links which may help you understand the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

Consumer Credit Agreements

[supasnooper]

Have a look here to see if it matches any of the agreements - http://consumeractiongroup.co.uk/res...lication-forms

[big.syd]

thanks for looking,

i was of the opinion that this was flawed becuase of the following>

1.illegible agreement

2. form has been shrunk as my signature is smaller on form than in real life.

3. differant dates on forms

4. referance to section 11 in terms and conditions. it only shows up to 3

5.'credit agreement', not credit card agreement

6 why sqeeze t&c on left hand side off application, yet waste all that space on rear?

i know that mbna have been 'creative with some of their ca's.

 

i would appreciate more input from other members, on the above, and quickly as mbna said they will default and pass on account on 30 sept.

[dx_]

Sorry, not what you asked, but if you're having trouble paying what they demand, have you contacted a payment plan agency? Such as payplan? 0800 716 239. Before 30th, they can help you set something up and keep the demands and DCA off your back.

[big.syd]

anyone got any thoughts on this.

comments from all welcome as time is running out

dont know what my best action would be

[vint1954]

If it is indeed an origional, then it would be enforceable. However, this company ar known for being:rolleyes: creative with their documents. This looks like the application part has been reduced to allow for the terms on the left.

 

There are also too many date and printer codes on the bottom. Application is date coded 11.01 terms are date coded 11.02, a year appart. Draw your own concusions from that. This is now the document that they would have to rely on in court. They will need to produce the original to this creation.

[vint1954]

Have you put the account in dispute an are you able to keep up repayments?

[big.syd]

thanks for checking vint..

i am very suspicious of this agreement.

to bring you up to date, for 18 months i was paying them

over 200 pounds per month(agrement,with interest frozen), no problems either side.

when at the end of last year my my payments were more than the monthly minimum requested on statement, they started ramping up the interest again. i contacted them on they said "we no longer consider you to be in financial hardship".

i complained and said that i have kept my part of bargain going and wanted to clear the debt.

as per usual wwith mbna,lots of lies and broken promises.

was told to make payment and things would revert to as was before.

you know the usuall bullshine!!

came across this site earlier this year and have been following and learning as much as possible.

yes the account is still in dispute as i have rquested a legible copy of my agreement.

tbh, i originally wanted to pay them off, but their attitude and below the belt antics have got me in revenge mode....

they have sent me the usual standard letters , plus offer of reduced payment, so maybe theres hope.

thanks once again for taking the time.

will answer any further question anyone may have tommorow morning.

[vint1954]

Try,

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 reconstructed illegible front page to an application form and generic terms & conditions, which cannot be linked to any 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.

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, for pre 2007 agreements. 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.

[big.syd]

wow, thanks vint,

looks like that will give them something to think about.

couple of things though,

should i fire off this letter before i S.A.R them?

should i omit the accusation that they have 'reconstructed'

the agreement, thus showing my hand at this stage?

both you and me know that this was more than likely 'butchers job'.

should i give them a bit more rope to 'hang' themselves.

at the momment i feel that the agreement would fall down on illegibility

alone.so we need to know what they might send next, hence my letter

to them requesting they send a copy that is legible.

i know that from this site, if they pass this account on whilst in dispute

they commit an offence(that wont bother them though).

any letters from dca will be batted back to them.

have you dealt with mbna before?

i do appriciate you taking the time to respond

thank you vint:)

[vint1954]

wow, thanks vint,

looks like that will give them something to think about.

couple of things though,

should i fire off this letter before i S.A.R them?

 

Yes

 

should i omit the accusation that they have 'reconstructed'

 

No

 

the agreement, thus showing my hand at this stage?

both you and me know that this was more than likely 'butchers job'.

should i give them a bit more rope to 'hang' themselves.

 

Yes put your letter in place. They will ignore it, but you have responded.

 

at the momment i feel that the agreement would fall down on illegibility

alone.so we need to know what they might send next, In all prbability, nothing but threats hence my letter

to them requesting they send a copy that is legible.

i know that from this site, if they pass this account on whilst in dispute

they commit an offence(that wont bother them though).

any letters from dca will be batted back to them.

 

Letters from DCA's should prompt a bemused letter from you. Cross that bridge when we come to it.

 

have you dealt with mbna before?

i do appriciate you taking the time to respond

thank you vint:)

Vint

[big.syd]

thanks again vint,

i shall follow your advise and send your suggested letter on

monday, recorded of course;).

i dont mean to question your knowledge, just clear a few doubts in my own mind,

your time and advice will always be appreciated:)

[vint1954]

No problem, best to question things, then you are sure.

[big.syd]

no reply from mbna regarding illegible copy

of cca....

i have however recived a DN requesting the full amount

outstanding quoting para 8f of terms and conditions.

default remedy date next week(dont want to give to

much info just yet)

[vint1954]

Make it an official complaint.

 

Obviously keep quiet about the DN at present.

[blueotter]

Syd.

Vinnt is again giving you some great advice here,you'll need to stick to your guns. They tried a similar thing with me and as soon as you start questioning the validity of the cca they sent you or more importantly can see that you know a bit more than they would like ,they'll ramp it up a bit.

 

I wouldn't be surprised in the slightest if their next step is to harass you by telephone a bit more and if that doesn't work they'll sell it onto a dca without letting you know.I'll subscribe to this thread as i'm at a more advanced stage than you and offer advice where i can though vinnt is a top man in this respect.

[big.syd]

vint, to whom should i complain and what should be my

letter of complaint contain.

i was going to let this run a little longer and await

termination. some say that demanding full amount

constitutes termination, but i am a bit cloudy on

that subject.

thank you again for your advice.

[vint1954]

To MBNA, just head it official complaint.

 

You are complaining about the fact they have issued a DN, while in dispute and issued a reconstructed agreement not a true copy.

[big.syd]

to blueotter,

thank you for checking in on my thread;).

strange to think that yesterday i read through

your thread and you should be replying to mine.

your advise is most welcome.

should they still be phoning during the 14days

allowed to correct DN.?

i will keep a close eye on your thread.

good luck with your battle

[big.syd]

hi vint,

would that not alert them to the fact

their DN is faulty and they would defer

ttermination of account.

ty

[vint1954]

hi vint,

would that not alert them to the fact

their DN is faulty and they would defer

ttermination of account.

ty

No, Don't alert them to the fact that the notice is faulty. They tend not to default accounts, just sell them on.

[big.syd]

which is the same as termination of account.

if i am correctly informed.

ty