lowell/cohen claimform - old MBNA/Abbey card debt **WON**

[Gazza112]

Hi CitizenB, robcag. Chalkitup. sytra.

 

Been going through some old credit card papers and came along the original copy of the Agreement that i had when i took out the Abbey Card.

 

The Terms and conditions are not the ones they recently sent me.

On the original agreement it states £25 charge and not the £12 thats showing in the papers they sent out.

 

Now whats the next move

 

Gaz

docs1.pdf

[Chalkitup]

Hello Gazza,

 

Before you send any letters I would post up the agreement you have found (minus your details of course) so we can have a look.

 

However ... having said that ... I see in post 58 you have a small piece of document entitled Financial & Related conditions ..... was this on the reverse of the side you signed (which they have dated 30 sept 2002?) Because although very difficult to read I think that holds the prescribed terms.

 

It would help if you could upload a clearer copy if possible ...... if the copy they sent you is really that poor then it is not compliant with the Copy Document regulations.

 

 

I was going to suggest the following but hang on till we see the doc you have found....

I would initially send them the following letter (courtesy of another CAG member but can not remember who at present) via recorded delivery. (change to suit your requirements .... ie perhaps get both agreements sent again because they are unreadable)

 

Dear Sirs,

Account Number: XXX

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974.

I note that you have replied to the above by sending an illegible copy of the alleged agreement. I must inform you that this is not sufficient to comply with the request and that your company is still in default under the Act.

To clarify, The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 states:

Legibility of notices and copy documents and wording of prescribed Forms

2.-(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 colour of the paper.

I hope this explains why your reply was unacceptable. I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues.

Yours faithfully

 

 

 

 

 

Onwards and Upwards

 

Chalkitup

[Gazza112]

Hi Chalkitup

CCA return .

This is what i found, i don't know weather there any good to use.

 

Gaz

CCa REturn.pdf

[citizenB]

DUH.. I lost the plot, I forgot this was what you discovered and not what they sent you

[Gazza112]

Hi citizenB

 

I'm always losing the plot lol, no these are what i found.

 

Gaz

[Chalkitup]

Hello Gazza,

 

Is this correct......

The doc in post 1 was sent to you shortly after you opened the Abbey account I presume.

it is the T&Cs of the period but your name and account number only PRINTED at the top.

 

But inresponse to your CCA request they sent you the docs in post above.

 

If that is right then I would....... ......

 

Put the doc in above away somewhere and forget about.

I would also want to establish if the two small docs in post 1 are the front and rear of one piece of paper plus we need to read what the document entitled Financial & Related conditions says ..... as I think that holds the prescribed terms.

 

If the copies sent to you are not legible then send the letter in post 69.

 

If you can read them but they become unreadable when uploaded then can you send the two small docs to me direct (delete all your personal details) if I pm you my email address.

 

Depending on the outcome of that we will then decide about the scissors icon and half the A4 paper missing .... because if they are front and rear of one piece and have the prescribed terms on them you will be on a sticky wicket.

 

Onwards and Upwards

 

Chalkitup

[Gazza112]

Hi Chalkitup

 

The two small docs on post 1 was sent to me on one piece of paper printed as you see it on the front and back with everything else missing or cut off.

 

 

On another point if you look at the MBNA Terms & Conditions around the in black border edge it looks like its been cut and pasted.

 

The lines look jagged.

 

Also it is very hard to read without a magnifier to read the print.

 

I'll email you those Docs Through so you can take a look.

 

Gaz

[Gazza112]

Hi CitizenB

 

I don't know whether you or any off the othe CAG members can look at this, and give me a bit of advice on what to do next.

 

Here's a letter i received today, about the CCA's i received from MBNA/Abbey.

 

Gaz

docs2.pdf

[citizenB]

Hmm, arent they the chucklebuckets then ?.

 

I would be interested to know exactly where it states they can make calls with any form of frequency. They say they are "entitled" not sure that is true.

 

If you went to CAB or one of the free debt helplines then they would help you complete a financial statement.

 

You do not have to "name" other creditors, nor do you have to give employer details (in fact at this stage, unless they already know, it would be foolish to part with any information of that nature). They can ask, but you are not legally obliged to give them copies of pay slips, benefit details.

 

If you are thinking of going down the route of making a reduced payment then there is a budget planner at the bottom of the letter template list in post 1 of the following link. I would list other creditors as such, putting the one with the higher value at the top, etc.

 

1 Credit card - £outstanding amount - Reduced payment £ XX

2 Personal loan - £outstanding amount -Reduced payment £ xx

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html#post162353

 

 

However, at the moment there is some question over the agreement/applications at the moment isnt there ?.

[car2403]

Ok. I've asked site admin to merge your threads.

 

MBNA;

 

Send them this;

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

 

Abbey;

 

Does the agreement contain the credit limit, interest rate and details of the repayments necessary? If not, send them the same letter as above. If it does, the debt will be enforceable by Court Order, at the very least.

[Gazza112]

Hi car2403

 

Thanks for the the letter thats fantastic, i'll get that off to them on Monday.

On the Abbey agreement which they sent out to me, which i signed on the 25/9/2002 i can only see the credit reference number and credit limit of £8500. The APR Rate is on the other small piece, which was photocopied on the other side of the agreement.

So i can't really say if the APR was on the original agreement.

 

Gaz

[Gazza112]

Hi

 

Just received my daily letter from Abbey, with they could send me the daily paper instead.

 

Gaz

docs4.pdf

[citizenB]

Well, we know they are telling untruths in that you have indeed been corresponding with them.

 

Ummm, I will think about this and get back to you.

[Gazza112]

Hi CitizenB

 

Thanks, your an Angel!!!!!!!!!!!!!!!!!!!!.

 

Gaz

[citizenB]

Questions,

 

I cant remember, what was the last letter you sent this crowd ?.

 

Have you SAR'd them ?.

 

Abbey is the account with the non compliant agreement isnt it ?

 

Are you still paying them the token payment of £1.00 ?

[Gazza112]

Hi CitizenB

 

Here is one of the last letters i sent to Abbey, i'll look through my files and see if i've fot a later letter.

No, i've not CCA them at the moment as i only ever defaulted on these accounts in late May this year.

Yes, Abbey was the account with the non complient agreement.

I'm also still paying them the £1 token payment.

 

Gaz

docs5.pdf

[Gazza112]

Hi

 

Need a little help with this, just received a letter today from Abbey.

There threatening me with a charging order on my property.

Here's the letter that was sent to me today.

 

Gaz

ccj+co threat.pdf

[car2403]

Ah yes, they are right, but they would have to get a CCJ first, then you'd have to default on that, then they would have to go back to Court for a charging order, then it will sit there until you sell your house.

 

Oh, did I say that none of this is at all likely?

[akania]

gazza i got EXACTLEY the same letter today re my daughters account, weird how yours is Abbey

 

I called the number and spoke to a woman called Samatha whilst having a fit at them for contacting my daughter in the first place. I sent loads of documents to them 2 weeks ago now which included an I & E breakdown, a letter stating she is broke at the mo, a letter of authority for me to deal with her account and a letter from her doctor regarding her depression. They told me that their post is behind 10 days and not to worry nothing will happen...im so peed off right now because my daughter opened that letter and now shes gone off on one !!!

[Gazza112]

Hi Car2403

 

Thanks for reassuring me with this, Abbey was the one's that sent me two pieces cut off for my agreement when i sent for my CCA.

 

Gaz

[Gazza112]

Hi akania

 

They must off watched the Panorama programme from last week and thought of trying there luck.

 

Gaz

[citizenB]

Gazza, I think this is just and empty threat.. however if you want to be proactive, I think the following letter created by surfaceagentx20 might be worth a try. I have amended it to suit your requirement.

 

I have had a look at CB's noble letter and have made a few tweaks for your consideration, as follows:

 

Dear Sir,

 

Re :

 

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES.

PLEASE DO NOT IGNORE.

 

I am in receipt of your letter dated 12th November, this was received on 17th November 2008.

 

You have indicated that

a) You are giving Notice of Potential Court order on my property

b) That you are pursuing litigation in order to obtain a County Court Judgement against me.

 

I am sure that you are aware that I have long since requested from you, under both the Consumer Credit Act 1974 (The Act) and the Data Protection Act 1998, a copy of the agreement to which you allege I am a signatory. To date this has not been provided to me and whilst I appreciate you have endeavoured to persuade me that the provision of a copy of an application form is sufficient to discharge you from further obligations under section 78 of the Act. Likewise I too have explained that the mere provision of a copy of an application form is not a legally permissable substitute for the provision of a true copy of the executed agreement as required under section 78 of the Act and as prescribed by Regulation 3 Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

I am sure you are also aware that under section 78(6) of the Act, whilst a creditor is in default of a request made under sub-section (1) they may not enforce the agreement.

 

Notwithstanding the foregoing and your persistent, unexplained and willful refusal to supply a copy of the executed agreement in accordance with its obligations (the permitted ommisions under Regulation 3(2) excepted), you are making plain your intention to begin legal proceedings against me. In consequence this matter may now be treated as one which is subject to the control of the Civil Procedure Rules.

 

Take notice therefore that under CPR Practice Direction - Protocols paragraph 4.6(a) and (d), I request that you supply copies of the following documents:

 

[1] A true copy of the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed and

[2] Any further or subsequent notices, terms and conditions relied upon.

 

Please note that my request under the Practice Direction is not a request for production within the confines of the Act and Regulations but rather, it is for a copy of the executed agreement, including signatures and all such other notices, terms and conditions as will be relied upon in the event that you begin a claim.

 

A copy of the documents I have requested should be supplied to me within 14 days and you are urged not to begin proceedings for a period of not less than 14 days following the supply of those documents to me.

 

Should you elect to ignore my request under the Practice Direction and commence proceedings, it is likely that I shall repeat my request for the provision of documents under CPR 31.14. In the event that you should fail to comply with my CPR 31.14 request, I will not hesitate in making an application to the court for an order that further proceedings upon the claim be stayed pending provision of the requisite documents, in the course of which application I will of course refer to this and previous requests for the provision of copy documents.

 

I look forward to hearing from you within the time stated.

 

Yours faithfully,

 

 

 

 

 

Hope this helps. BTw, if you havent sent a SAR letter, then edit that bits in blue out.. ??

[Gazza112]

Hi

 

MBNA's partner in crime Abbey sent me a nice letter through the post to day in a brown enverlope. So it looks like i've gone up one from the normal white enverlopes i receive.

Here's the letter i received today from Abbey.

 

Gaz

doc6.pdf

[car2403]

The key word being "may"...

[citizenB]

 

CitizenB .... I guess you are going to make the point that I noticed when seeing that post card they sent .... i.e. regarding OFT Debt Collection Guidance July 2003 (updated December 2006) 2.6 (j) ...

"Acting in a way likely to be publicly embarrassing to the debtor either deliberately or through lack of care, for example, by not putting correspondence in a sealed envelope and putting it through a letterbox, thereby running the risk that it could be read by third parties."

 

I also would point out 2.2 ©..

"Those contacting debtors not making clear who they are, who they work for, what their role is, what the purpose of the contact is"

 

Onwards and Upwards

 

Chalkitup

 

Absolutely, you would have thought they would have got the message by now, dont you ?

 

Hi CitizenB

 

Hope you had a nice weekend

 

No, just come as a postcard.

What i done i sen't them a letter today, nearly the same letter i sent Power2contact about Harassment by Doorstep callers and phone calls.

I had a job to see who sent it, till i was pointed out the smallprint on the card.

 

Gaz

 

Thats the spirit, Gazza.

 

The key word being "may"...

 

It certainly is:D