Arrow/reston claimform - old MBNA card 'debt'

[foolishgirl]

Thanks to CB, you'll find the 'real' examples here:

http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

[amber]

MBNASlayer, no real examples here. But having used to work for them (see my thread) based on my assumptions, I'd say the T&C's are nothing more than just copies. Ask for proof of a true copy. Good luck x

[MBNASlayer(1)]

Thanks Amber.

 

I have sent the letter that Foolishgirl kindly put on post #11 so we will see what comes of that.

 

Foolish Girl + Vint

 

FG - The agreements posted in the link you have put up state that the agreement would be enforceable if if the prescribed term were indeed on the back of the agreement even though the signature is on page 1.

 

What are your thoughts on this?

[foolishgirl]

Only if it can be proved that the Page 2 they supply is the actual back of Page 1 & the T&Cs are referred to on Page 1.

[MBNASlayer(1)]

Well that gives me some confidence as no where on the front page of the alledge CCA does it refer to the terms on the back

 

Thanks FG

[vint1954]

I am still of the oppinion that if the prescribed terms are on page 2, then so should your signature be. All contracts are signed at the end.

[foolishgirl]

I am still of the oppinion that if the prescribed terms are on page 2, then so should your signature be. All contracts are signed at the end.

 

I agree but I think there have been cases where it has been judged acceptable if everything falls within 'the 4 corners'.

[MBNASlayer(1)]

FG

 

Even if the terms are on the back and are not referred to?

 

Do you have any links to cases where this has been the decision?

[vint1954]

I agree but I think there have been cases where it has been judged acceptable if everything falls within 'the 4 corners'.

Your not wrong there. I think it just needs to be argued properly.

 

On one hand:

 

The case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 confirms that the prescribed terms must be within the agreement document itself and cannot be contained in a separate document and simply be referred to;

 

"33 In my judgment the objective of Schedule 6 [of the Agreement Regulations] is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s61 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. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

On the other hand:

From Consumer Law book by John Keith Mcleod , barrister, professor of law, 2002 Edition, that applies to agreements of this age.

To clarify concerning 61(a) of the CCA 1974:

 

This section clearly requires that a regulated agreement including a credit token agreement must comply with the following requirements;

 

1. it must be in the prescribed form as to the Agreement Regulations.

 

2. On the SAME side as the signatures, the document itself must contain the terms prescribed in the agreement regulations (reg 6(1)):

the credit limit, the rate of interest and a term stating how the financial obligations of the debtor is discharged and these must be stated together as a whole that will ensure that the larger list is included in the actual agreement rather than any document referred to in it.

The regulation makes it clear that the absence of these terms takes an agreement outside the dispensing power of the court.

 

Now to explain what S61(b) means:

 

The document embodies all the terms of the agreement, other than the implied terms.

 

This section requires that the regulated agreement contains or refers to all the express terms of the agreement ( NOT THE PRESCRIBED TERMS!!) the T&C's.

 

Now to go further:

 

This is called the required terms and it is these terms (and NOT the PRESCRIBED TERMS) that are what is referred to on the NON-SIGNATURE side (the reverse) this is to COMPLY with S.189(4) 'embodies' the terms required by the Agreement regulations so that they must either be in the agreement OR in adocument referred to in it.

 

So the PRESCRIBED TERMS MUST BE ON THE SAME SIDE AS THE SIGNATURES. If the agreement refers to anything 'overleaf' then it is referring to basically T&C's.

[vint1954]

FG

 

Even if the terms are on the back and are not referred to?

 

Do you have any links to cases where this has been the decision?

It is a topic of debate MBNAslayer,

 

I have posted both cases above. The question is what in the first case was meant by 4 corners, or was the term used inappropriately.

 

If you look at it logically, you may be presented with an agreement to sign on page one, where you were prevented or persuaded from seeing the reverse. If the signature was on the reverse, you would have to see both pages, so this is possibly the reason for the 4 corners term in that case.

[foolishgirl]

I agree with vint, MBNAslayer. It would be up to you to argue the point effectively in court & hope you had an educated & sympathetic DJ.

 

Of course, MBNA would still have to prove that Page 2 was the reverse of Page 1 & if they haven't kept an original that would be hard. They would be relying on persuading the DJ that their method of record keeping was accurate & of course you would be demanding they prove how the records were, copied & compiled & if it complies with the BSI BIP0008 wouldn't you?

[MBNASlayer(1)]

Vint

 

Thanks for that. I have read the judgement of the Wilson case. It appears that the judge is merely quoting from the judgement made by the county court in the original case and agreeing with the point raised.

 

As the issue of the case was not weather the T&C's were on the reverse I think it may have had too much weight placed on the four corners quote.

 

On the other hand Prof John Mcleod is a eminent barrister and Phd so his views certainly carry a huge amount of wait. He also directly addresses the issue.

 

FG

 

Sorry I missed you post at first. Your referral to BSI BIP0008 is genius.

 

My agreement dates from 1998 so whats the chances of MBNA being able to produce a documented procedure that confirms their processes comply

[vint1954]

Has anybody seen MBNA's ISO accreditation document? How they are meant to handle documents.

[MAGDA]

I have a similar 'agreement' and it mentions (I think yours is the same, MBNASlayer) that I have received a copy of the t&cs, or agree to them, something along those lines. According to Cabot who have been assigned my MBNA account, the T&Cs contained the prescribed terms (although they don't have the orignal ones, only the current t&cs) and although a separate document, this is covered by s189(4) "embodies a provision if the provision is set out either in the document itself, or a document referred to in it." If this was the case, they could get you to sign an 'agreement' and the prescribed terms could be in a document which is posted to you a month later, simply because it's mentioned, which obviously doesn't make sense at all. They push this point relentlessly, though haven't taken me to court yet.... Magda

[MAGDA]

I think prior to 2005, the prescribed terms did not necessarily need to appear before the signature, re: this post by Peterbard:

 

Quote:

"Hi

I think the peice you quoted refers to post may 2005 agreement which are coverred by the 2004/1482 agreement regulations.

The earlier regs co not require the signature to be on the same page of the agrement as the prescribed terms in fact they can be anywhere within the agreement.

The new ammended agreement regs altered this in 2005 when it intrudeced the key information format which alter the no dispecement rules contained within the 1983/1553 to include the signature box.

 

The embodiies versies contains definition is expalained on here several times by me and othere and is pretty much as you say .The term "Emodies "refers to any document other thatn the agreement which was involved in the anticedant negotiations."

[MBNASlayer(1)]

Magda

 

Thanks for your comments.

 

S 189(4) does not refer to the issue you have mentioned so not sure what cabot are going on about.

[MAGDA]

Magda

 

Thanks for your comments.

 

S 189(4) does not refer to the issue you have mentioned so not sure what cabot are going on about.

 

I know. I'm not sure either. They claim that if the prescribed terms are not mentioned in the actual signature document, then s189(4) allows for the prescribed terms to be in, for example, the t&cs doc, as long as this is mentioned on the actual agreement. Think like most DCAs they are clutching at straws.

 

 

Magda

[vint1954]

I have a similar 'agreement' and it mentions (I think yours is the same, MBNASlayer) that I have received a copy of the t&cs, or agree to them, something along those lines. According to Cabot who have been assigned my MBNA account, the T&Cs contained the prescribed terms (although they don't have the orignal ones, only the current t&cs) and although a separate document, this is covered by s189(4) "embodies a provision if the provision is set out either in the document itself, or a document referred to in it." If this was the case, they could get you to sign an 'agreement' and the prescribed terms could be in a document which is posted to you a month later, simply because it's mentioned, which obviously doesn't make sense at all. They push this point relentlessly, though haven't taken me to court yet.... Magda

the 1974 act requires that the prescribed terms must be within the agreement document and cannot be found anywhere else. See Francis Bennion. s189 refers to terms other than prescribed.

[vint1954]

Magda

 

Thanks for your comments.

 

S 189(4) does not refer to the issue you have mentioned so not sure what cabot are going on about.

They are trying to hoodwink you. A novel interpritation by them, but must try harder.

[MAGDA]

They are trying to hoodwink you. A novel interpritation by them, but must try harder.

 

Thanks vint - yes, I think they are really scraping the barrel here. I did wonder if s189 was just applicable to the terms other than prescribed, so thanks for confirming that.

 

Magda

[vint1954]

Sections 61, 65 and 127 of the CCA 1974, and the recent binding decisions in the high court and court of appeal regarding the lack of prescribed terms in regulated consumer agreements. I refer the the cases of Wilson V FCT and Wilson V Hurstanger.

Both these BINDING judgements hold that if a regulated agreement is missing any prescribed terms, or if the terms are misstated then the agreement is irredeemably unenforceable.

In Wilson V Hurstanger it is stated that the prescribed terms should be within the signature document and not in any other document. I believe that the document sent to me with my signature on does not contain the prescribed terms and as such is unenforceable.

 

Perhaps Cabot is now a higher authority than the High Court or Court of appeal:D

[MAGDA]

Sections 61, 65 and 127 of the CCA 1974, and the recent binding decisions in the high court and court of appeal regarding the lack of prescribed terms in regulated consumer agreements. I refer the the cases of Wilson V FCT and Wilson V Hurstanger.

Both these BINDING judgements hold that if a regulated agreement is missing any prescribed terms, or if the terms are misstated then the agreement is irredeemably unenforceable.

In Wilson V Hurstanger it is stated that the prescribed terms should be within the signature document and not in any other document. I believe that the document sent to me with my signature on does not contain the prescribed terms and as such is unenforceable.

 

Perhaps Cabot is now a higher authority than the High Court or Court of appeal:D

 

They certainly like to think they are:rolleyes:

 

 

Magda

[MBNASlayer(1)]

Well I had hoped to challenge MBNA without defaulting. Unfortunetely it has now got to the stage where I cant meet the minimum premium so I have cancelled the direct debit.

 

What should I do now? Should I contact MBNA and tell them I cant make the payment and see what they suggest?

 

Any thoughts/experience people have would be really appreciated.

 

Thanks

[rondodiver]

Have they whacked your interest rate upto the extortionate level if so try and challenge them on that as well and if no success take it to the FSO

[MBNASlayer(1)]

Rondodiver

 

They sure have. It wnt from 19% to 34.5%. I then opted out of this rate and they said it would be 29% until paid off and then they will cancel the agreement.

 

So in reality I will never pay it off if I meet the minimum payment each month.