mbna - is CCA the way

[wrungout]

Hello everyone on here, this site has been a mine of info (and a lifesaver for some I'd guess) and I hope I may find some assistance for my own circumstances.

 

I won't bore you with detail, suffice to say financial matters have taken sudden turn for the worse as well as some personal issues. Homeowner (Jointly - with some equity) and a substantial balance on MBNA card.

 

Spoke to them twice about their interest rate of 34%, the fact that until now have never missed a single payment (since 2003), now approaching some difficulty with the monthly minimum, is there anything that can be done. I was quite surprised by their lofty response, well let's face it they have me over the proverbial barrel.

 

So I now wonder about the legitimacy of their agreement but not sure of the consequences of some of the recommended action suggested on the forum.

 

My agreement (have copy of signed original on file) is similar to that of Gazza's -

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/162249-mbna-cca-agreement-help.html

 

The conditions down the left hand side included the interest rates etc, however there is no mention anywhere of default notice or related charges, there is no mbna signature, the side bar type face is extremely small and not legible without additional magnification. Unfortunately much of the background is very dark and probably would not copy well to show it on here.

 

My question is - if after going through the motions of CCA the agreement were to be deemed enforceable can they force me to pay the full amount immediately (thereby necessitating property sale, forced or otherwise) or would I still be in a position to negotiate some kind of settlement, F&F or over a period.

 

I have a payment due shortly which I can barely afford (bread & water from then on) but instinctively want to make rather than have a missed payment.

 

Can someone be kind enough to give me some guidance on how best to approach this, Id be extremely grateful.

Edited October 6, 2009 by wrungout

[bozalt]

Hi Wrungout

 

I am in a similar situation and going throught he motions with MBNA and their cohorts at the moment.

 

The thing that I have come to realise that at the end of the day they cannot force you to sell your property without going through all the legal avenues which looking at the CCA's MBNA hold would be highly unlikely to succeed.

 

I do not feel qualifed to give further advice at the moment but I would reccomend checking out my thread http://www.consumeractiongroup.co.uk/forum/mbna/175080-virgin-card-mbna-cca.html and also Sunflowers which I find particularly reassuring.

 

Sunflowers thread is here http://www.consumeractiongroup.co.uk/forum/legal-issues/199523-restons-mbna-issued-court.html and I am sure some one wi th more knowledge than I will be along to offer some decent advice.

 

Good luck

 

B

[wrungout]

Bozalt, many thanks for your consideration and comments, have read some of your thread and that of Sunflower plus a whole lot more and will read the rest later (is CAG reading addictive?)

 

As I mentioned in my opening post the copy of my original application/agreement which I kept is laid out in similar fashion to Gazzas, hope he doesn't mind, I've tried to copy it over here.

 

From reading various threads I think the main areas of contention would be the following and perhaps someone could let me know if any of these individually or collectively would be sufficient to consider the unenforceability option in court.

 

a) There are 2 headers ~

 

CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974

and then inside the box

MBNA CLASSIC CARD APPLICATION FORM

 

b) The sidebar containing the T&C's include the interest rates, APR etc.

There is no mention of default notice or charges.

The font size is very small and hardly legible without magnification.

 

c) There is no mbna signature anywhere on the form nor on the form that came with the card attached which also included the T&C's but again no mention of defaults.

 

many thanks.

 

 

[MBNASlayer(1)]

Wrung out

 

I have just started down the same route as you. I have been advised that an application form is just that, an application. MBNA would have to provide you with a properly executed CCA with all of the prescribed terms.

 

I am new to this so I would wait for some experienced CAGERS to comment but that is what I have been advised so far.

 

Good luck

[wrungout]

mbnaslayer, thanks for your comments and I've read your thread which I'll follow and wish you success.

 

I have attached a copy of the signed original App/agreement I sent to mbna in 2003. It is modified for the purposes of posting on here ie I have inverted the colour to make it more legible. The sidebar with the T&C's have been enlarged from their tiny font size again to make them more legible. Quality isn't great but hopefully good enough to read.

 

I'd be very grateful to hear from any of the resident experts what their thoughts are on the enforceability of this agreement.

 

many thanks.

 

 

Edited October 14, 2009 by wrungout

[rondodiver]

Hi Wrungout

 

I was in the similar situation regarding the interest rate, however I have now had it reduced by constant coomplaining in writing and getting a final response letter then making a complaint to the FOS who have ruled in my favour, however it has taken a year now but they are reimbursing me the money so whilst it does take a while it is worth doing IMHO

[Gazza112]

Hi wrungout

 

My agreement (have copy of signed original on file) is similar to that of Gazza's -

MBNA CCA Agreement HELP!!!!!!!/ **WON**

 

You can also see my other case Gazza112.v.Abbey/MBNA

 

Have MABA issued you with a default notice yet, as this is wear they always slip up on the default notice.

In my case they made a right hash of things, as the sold the dept on 4 days before the remedy of the default notice.

Also the default notice was invalid.

 

I also must stress that if it ever got to Court the will have to bring the originals to Court and not microfilm copies of an Application/Agreement.

 

 

Gaz

[MBNASlayer(1)]

Hi Gazza

 

In the thread you have posted it states that an application form can be considered a properly executed CCA, is this correct? I have read in the case of Rankines v Others that the jusdge stated they would have to produce a valid CCA after the application was accepted.

 

Which is the correct answer?

[wrungout]

Hi Gazza, yes I've read both your maba threads, thanks very much and well done on your results.

 

Your agreement looked similar to mine (now included in post above) which led me to think I may be able to do something. I havenn't had a default yet and can see where you're coming from but to date I haven't missed a payment on anything and I'm struggling to come to terms with this scenario, even though there is some inevitability about this happening and very soon. It almost seems that it would be in my interest to force the issue, get the default and take it from there. I think I may be in for yet another sleepless night weighing this one up.

 

Rondodiver, point taken, will have another go. I did wonder if I should write to them, make them an offer, enclose the payment and see if I could force their hand that way.

 

thanks again to all, your help is appreciated.

[Gazza112]

Hi MBNAslayer

 

No, an application is just what is say an application.

You still need a true copy of the agreement, and if it goes to Court the original agreement needs to be prescent, along with a valid DN and notice of assignment if the dept's has been passed over to a third company.

 

I wouldn't really use Rankines v Others as a case, as it had a few defects in that.

 

 

Gaz

[Gazza112]

Hi Gazza, yes I've read both your maba threads, thanks very much and well done on your results.

 

Your agreement looked similar to mine (now included in post above) which led me to think I may be able to do something. I havenn't had a default yet and can see where you're coming from but to date I haven't missed a payment on anything and I'm struggling to come to terms with this scenario, even though there is some inevitability about this happening and very soon. It almost seems that it would be in my interest to force the issue, get the default and take it from there. I think I may be in for yet another sleepless night weighing this one up.

 

Rondodiver, point taken, will have another go. I did wonder if I should write to them, make them an offer, enclose the payment and see if I could force their hand that way.

 

thanks again to all, your help is appreciated.

 

 

 

I know it all seems dawnting when you first start out and your head is spinning to what to do next.

You can by all means write to them and offer them a f & F figure, but knowing the way MBNA work they will sell the remaining part off to a DCA.

I certainly wouldn't lose any sleep over these people as it won't get you anywhere.

 

Wright, first things first you say they sent you what they call an agreement through to you. Is it readable if not, send them a copy saying that the account is still in dispute. Did they send you any T & C's with the application/agreement.

 

Gaz

[MBNASlayer(1)]

Gazza

 

Sorry to hijack this thread but I think it is relevant. Is there any case law tat you are aware of that states that a properly executed agreement must be sent to the debtor after they have received an application form?

[wrungout]

Hi Gazza, thanks for coming back to me on those points.

 

I've included a copy of my agreement above in an earlier post and this is an exact copy which I made at the time of application in 2003. I haven't done CCA or anything else yet, I was trying to establish the validity of their application/agreement before rocking the boat with them.

 

If it transpires that the agreement is enforceable then I'd have to weigh up the risks of trying the CCA and eventual default route in the hope that i might have similar success to yourself and others on here. That may be a risk too far for me at present the way my luck is going, but it may be all I can do.

 

thanks again.

Edited October 6, 2009 by wrungout

[wrungout]

Gazza

 

Sorry to hijack this thread but I think it is relevant. Is there any case law tat you are aware of that states that a properly executed agreement must be sent to the debtor after they have received an application form?

 

Hi mbnaslayer, no problem, you go right ahead, this is all valid stuff.

 

As a matter of interest I was sent the form below with my card, it does include some of the prescribed terms but nothing about defaults and no mbna signature.

 

 

[MBNASlayer(1)]

Wrungout

 

Thanks for this. So did MBNA send you this agreement once they had agreed your credit card?

 

If they did not only does it not have their signature but it doesn't request a signature from you!!!

 

I wonder if that could be deemed unenforceable or if the fact you 'activated' the card is sufficient to show that you agreed to be bound by the terms

[wrungout]

MBslayer, Yes the card was attached to this form which they sent out after I'd returned the application/agreement in post 5. The form in post 5 did have some of the relevant terms and it was signed by me (but not mbna).

 

I suppose any lender can easily prove the existence of their terms etc as you suggest but the issue that many seem to utilise is the validity of the primary documents re their minimum requirements.

[MBNASlayer(1)]

So an application can count as a valid agreement so long as it contains the prescribed terms?

 

What every happened to the law of contract. Surely you do not fill out an application form with the intention of creating a legal relationship as nothing has yet been agreed. That intention to create a legal relationship would surely occur after their offer (of a credit account) has been accepted?

 

It seems jolly confusing to me. I am tempted to pass my case over to one of the companies that says they can write of your debt and let them deal with it.

[wrungout]

So an application can count as a valid agreement so long as it contains the prescribed terms?

The application was also headed "CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974" so the question really is 'can an application form also be an agreement'. Could I argue that as there was no mbna signature on the application/agreement it would be more likely to classify this document as an application and only that.

 

What every happened to the law of contract. Surely you do not fill out an application form with the intention of creating a legal relationship as nothing has yet been agreed. That intention to create a legal relationship would surely occur after their offer (of a credit account) has been accepted?

That would seem logical to me but are we in the world of logic here? The form they sent with the card confirming the credit limit etc had most of the necessary terms but again no signature and no mention of default notice or charges.

 

It seems jolly confusing to me. I am tempted to pass my case over to one of the companies that says they can write of your debt and let them deal with it.

I'd thought of this too but I do believe there is invaluable help and advice on here from people with detailed knowledge and experience as opposed to the likeilhood you'd be dealing with a paralegal and become just a number in their sausage factory. Just my 2p worth.

[wrungout]

Could someone be kind enough to take a look at my paperwork in posts 5 & 14 above and let me know their thoughts on their validity.

Post 5 is the application/agreement; post 14 was sent with the card.

 

I'd be very grateful for any help on this, many thanks.

[steven4064]

The agreement in post #14 is useless as it has no signature - at best it is therefore just a copy of T&Cs. The agreement in post #5 though is an enforceable agreement. Although it is headed "Application form", it is also headed "credit agreement regulated by the consumer credit act 1974" and it has your signature and all the prescribed terms in the sidebar.

[wrungout]

The agreement in post #14 is useless as it has no signature - at best it is therefore just a copy of T&Cs. The agreement in post #5 though is an enforceable agreement. Although it is headed "Application form", it is also headed "credit agreement regulated by the consumer credit act 1974" and it has your signature and all the prescribed terms in the sidebar.

 

Hi Steven, many thanks for your comments.

 

The application/agreement which you feel is enforceable doesn't have any creditor signature; no clause about default notice or charges; agreement heading is "CREDIT AGREEMENT" as opposed to "credit CARD agreement; and the sidebar with the information was a really small font and quite arguably not legible without some magnification other than normal specs.

 

Do you think this would make any difference in terms of its enforceability?

 

Thanks again for your help, wrungout.

[wrungout]

As this agreement appears to be enforceable is it worthwhile doing a CCA just on the offchance that they may have lost it. Any comments/opinions welcome.

 

 

Edited October 14, 2009 by wrungout

[IdaInFife]

It would be very interesting to see what they might reply with.

 

 

a creditors signature itself would not make it unenforceable and i can see the charges on the last paragraph on the left.

 

sending a cca request will not make it any worse so worth while for a quid

 

ida x