Help with MBNA CCA, please. - ***WRITTEN OFF***

[Laura Cooke]

Envelope with Default in that came 15th January 2010

[Gazza112]

Hi Laura

 

The letter looks like stalling tactics from them, There telling you in a roundabout way. That there not happy with the CCCS plan and want you to pay them individually away from the other Creditors.

They have also broken the OFT ruling about asking another member of your family to take the dept on.

I also think there telling you without putting it down in writing that they haven't got an agreement.

I would wright them a letter saying thankyou for your help and offer, but as from my letter dated ........ you have still not come over with my agreement which i have asked for.

 

 

Gaz

[diddydicky]

just another way of trying to get you to phone

 

write and tell them you would be pleased to consider any offer to resolve the matter but for good orders sake you require the details of the offer in writing

 

dont hold your breath waiting for the reply though - but at least you got it covered in your files

[Laura Cooke]

According to another poster they have the original of their 2003 application which is same as my hubbies with the terms and conditions down left hand side they don`t look right like right to me as the back page which is a advertisement is squashed up cutting 2 of the large lettered words off but the other poster states that`s how is original is as for the agreement all I my hubbie as is a up to date one seen one from 2003 and that`s different to what my hubbie as

 

Do you think I should write as diddydicky you advise as makes it look like I`m agreeing to a payment plan with them and one of those is already in place

[diddydicky]

it doesn't matter what it "looks like" since you are arguing that they don't have a legally enforceable agreement, not that you don't have an agreement

 

all you are asking them to do is detail the offer that they are making to you so that they cannot later say in court that they tried to resolve the matter but you ignored them

[diddydicky]

copy this paragaph to your word processor and learn it off by heart as you will better understand what you are trying to acheive

 

many folk try to deny that "an agreement" was entered into when in 99.999% of cases there is overwhelming evidence that they did- therefore they immediately make themselves look to be evasive when the REAL argument is NOT that you don't owe them anything but that they cannot legally enforce what they say it is you owe them

 

once you get rid of the legal threats and get down and dirty with them face to face on an even keel - its a whole new ball game!!

 

 

The Defendant admits entering into an agreement with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

[wrungout]

it doesn't matter what it "looks like" since you are arguing that they don't have a legally enforceable agreement, not that you don't have an agreement

 

all you are asking them to do is detail the offer that they are making to you so that they cannot later say in court that they tried to resolve the matter but you ignored them

 

Hi diddydicky, would be interested to know your thoughts on the unenforceability aspects of Laura's agreement (2003), I have a similar one.

 

Thanks for the quoted paragragh in your next post and the related comments. Do you think some judges rule against defences because the defence is built around denial of the existence of a legally binding contract as opposed to what you suggest, in other words you'd be in court solely to disprove the legality of the contract which you accept exists?

[diddydicky]

Hi diddydicky, would be interested to know your thoughts on the unenforceability aspects of Laura's agreement (2003), I have a similar one.

 

Thanks for the quoted paragragh in your next post and the related comments. Do you think some judges rule against defences because the defence is built around denial of the existence of a legally binding contract as opposed to what you suggest, in other words you'd be in court solely to disprove the legality of the contract which you accept exists?

 

+++

 

a guy comes home at 2am, been out with another woman,

 

he can say

 

sorry luv ive been out with the lads and the response will inevitably be

 

you lying b****tard youve been with another woman

 

 

the same man comes home 3 days later at the same time and says

 

i cannot tell a lie luv i saw this lovely young blonde thumbing a lift so i gave her one- no to be fair i gave her half a dozen- thats why im late

 

and the response?

 

you lying b***tard youve been out drinking!!!

 

 

the moral of the story is to take the wind out of their sails

 

if you put that paragraph at the head of your statement, any mileage the other side might have had in trying (or even the judge) to ask you the embarrassing question did you borrow/use the money" was completely lost.

 

of course you cant deny borrowing the money- there are credit card slips all over the place showing that you did.

 

the answer to the question should it be asked is to refer them to para XXX in your statement and say that the issue is not whether you borrowed or spent money, but whether the creditor is entitled to legally enforce the agreement

[diddydicky]

Hi diddydicky, would be interested to know your thoughts on the unenforceability aspects of Laura's agreement (2003), I have a similar one.

Thanks for the quoted paragragh in your next post and the related comments. Do you think some judges rule against defences because the defence is built around denial of the existence of a legally binding contract as opposed to what you suggest, in other words you'd be in court solely to disprove the legality of the contract which you accept exists?

 

i would if i could find it!!

[Laura Cooke]

It`s quite smudged in places some of numbers missing and different address left hand side to right hand side? back as RAC advertising page the agreement that came with it looks like a recent one with hubbies name added to it

[diddydicky]

well i cant read it to see if the PT's are there

 

is is readable to you?

 

if it is not "easily legible" it falls foul anyway

 

clearly from a microfiche so either they havnt got the original or cant be bothered looking id say

[wrungout]

Hi Laura, one thing to bear in mind with your above form, the signature on the top left hand corner would have been done internally (probably part of their approval procedure).

You would not have had that signature on the copy that you signed and sent off, so this would not constitute a creditor signature which is a requirement on such agreements. Hope this helps.

[wrungout]

well i cant read it to see if the PT's are there

 

is is readable to you?

 

if it is not "easily legible" it falls foul anyway

 

clearly from a microfiche so either they havnt got the original or cant be bothered looking id say

 

Thanks for your earlier responses, appreciated.

I have a 'good' photocopy of my original form which is similar to Laura's. The PT's are there in the body of the T&C's down the left hand side BUT they are not "easily legible" without some magnification.

If Laura's agreement were to be put down in front of a judge and you insisted that he check for him/herself that the PT's were in order I would say they would really struggle.

Bearing in mind the microfiche copy would be even less legible what would happen in real life in this situation if it went to court??

[diddydicky]

they are prevented from enforcing the agreement until such time as they produce a legible copy of the agreement

 

so when you get a DN you will have lots of lovely unlawful charges in their making the figure wrong and the dn defective

 

funnily enough if you go over to humblemans thread and read the judgement he just posted the creditors barrister and judge agree that the creditor cannot enforce all the time the agreement is illegible (but they can as soon as they produce a legible copy)

 

the regulations state that the copy must be easily legible - so no need of magnifying glasses

[Laura Cooke]

Thanks as always diddydicky I count your advice dearly as I do Gazza`s I sent off a letter recently to Capital One I think it was I sent it word for word as you advised as I believe you have wisdom in your words

 

I have read loads and loads of material on here and follow the Humbelman`s case with great interest he was badly dealt with Judges have no right to let personal feelings get in the way of justice

 

Under Waksman`s judgement am I right in saying he stated it is ok for creditors to enforce even when account is in dispute? as I am still making payments on a debt management plan for my hubbie even though not one of the 6 creditors as complied I just don`t want to do right for doing wrong becasue the goal posts keep shifting on every bit of information I read on here

 

Read on what is supposedly supposed to be my hubbies 2003 & 2005 MBNA agreements under 13 (General) "We will always treat you as having received the notice or demand at the postal or email address you give us" strange then how I`ve been fighting for weeks to get them to send the sars to this address!!!! again I read yesterday a letter off the FOS where they condemned someone on the site for not giving a signature as i believe you are meant to give one for the sars it is a lottery who you listen to some say do this some say don`t

 

Wrungout have you got your agreement from 2003? looked at some others from 2003 and 2005 in the library but none are exactly like the one`s my hubbie as which IMO are recent one`s yet last night I copied a 2009 or 2010 set of terms and conditions which is different again to what my hubbie as it goes up to 14 on my hubbies and 15g on this one I saw last night on a web site "My team credit cards"

 

On both my hubbies 2003 and 2005 applications it states "The rest of your terms and conditions 4-19 can be found in the full copy which we must give you under the consumer credit act 1974 which is enclosed" I`ll be damned what these are

And at the bottom of the application`s it states "You must read section 11 in the terms and conditions provided" the terms and conditions only go to 3B on both the 2003 and 2005 application but there is an 11 in the agreement (The agreement wouldn`t have been provided at time of filling in application?)

 

And diddydicky no the application is hard to make out even with a magnifying glass some places where there are meant to be numbers the odd number is missing other words are smudged/blurred

Edited January 18, 2010 by Laura Cooke

[Laura Cooke]

M & Gaz what are your comments on something like this to send with a budget sheet showing a shortfall for creditors, is it wrong to state "Any debt that may be owing" don`t want to word it wrong should I just say owing any advice appreciated will send on Monday. I haven`t named who the creditors are on the budget sheets or any balances just what the income is and daily living for a month

 

Dear Sir-Madam

 

Reference:

 

Please find enclosed a copy of my personal budget sheet which gives details of my present financial circumstances

 

As you can see my outgoings are more than my income and I am experiencing extreme financial hardship. I would be grateful if you would consider writing off any outstanding debt that may be owing to your company? I have always taken very seriously my financial responsibilities but unfortunately my circumstances are so bad that I cannot realistically maintain payments of any kind. As a gesture of goodwill I am want to offer a £1 token payment every month to all creditors, could you please send details to enable me to do this?

 

I have a brain injury & mental health which as deterioated so badly in the last 24 months that I am now dependent on others my situation is permanent, my level of debt is having serious effect on my physical and mental wellbeing.

 

I would also request as I have done previously that you refrain from telephoning my home or making arrangements to visit my home as I am unable to deal with matters myself and from what I understand you should not discuss my affairs with my wife who does not wish to discuss matters anyway

 

Yours faithfully

********

[diddydicky]

Thanks as always diddydicky I count your advice dearly as I do Gazza`s I sent off a letter recently to Capital One I think it was I sent it word for word as you advised as I believe you have wisdom in your words

 

I have read loads and loads of material on here and follow the Humbelman`s case with great interest he was badly dealt with Judges have no right to let personal feelings get in the way of justice

 

Under Waksman`s judgement am I right in saying he stated it is ok for creditors to enforce even when account is in dispute? as I am still making payments on a debt management plan for my hubbie even though not one of the 6 creditors as complied I just don`t want to do right for doing wrong becasue the goal posts keep shifting on every bit of information I read on here

 

Read on what is supposedly supposed to be my hubbies 2003 & 2005 MBNA agreements under 13 (General) "We will always treat you as having received the notice or demand at the postal or email address you give us" strange then how I`ve been fighting for weeks to get them to send the sars to this address!!!! again I read yesterday a letter off the FOS where they condemned someone on the site for not giving a signature as i believe you are meant to give one for the sars it is a lottery who you listen to some say do this some say don`t

 

Wrungout have you got your agreement from 2003? looked at some others from 2003 and 2005 in the library but none are exactly like the one`s my hubbie as which IMO are recent one`s yet last night I copied a 2009 or 2010 set of terms and conditions which is different again to what my hubbie as it goes up to 14 on my hubbies and 15g on this one I saw last night on a web site "My team credit cards"

 

On both my hubbies 2003 and 2005 applications it states "The rest of your terms and conditions 4-19 can be found in the full copy which we must give you under the consumer credit act 1974 which is enclosed" I`ll be damned what these are

And at the bottom of the application`s it states "You must read section 11 in the terms and conditions provided" the terms and conditions only go to 3B on both the 2003 and 2005 application but there is an 11 in the agreement (The agreement wouldn`t have been provided at time of filling in application?)

 

And diddydicky no the application is hard to make out even with a magnifying glass some places where there are meant to be numbers the odd number is missing other words are smudged/blurred

 

the missing s11 argument has , you will be pleased to know hit the courts before and the judge has ruled against MBNA for not providing the whole of the T & C's

 

the signature debate (IMO only) is not worth fretting over

 

either put a wiggle through your signature or add/subtract a letter when writing to creditors, that way it cant be lifted and placed onto a previous document by the creditor or dca (as that seems to be the unfounded concern to many)

 

i always sign my letters with an undicipherable one letter "sqwiggle"- as if you look at letters you have received, do most legal bods.

[Laura Cooke]

Thanks DD any advice or comments on post 117 as wasn`t sure what to write that is seen to be ok to all

[Gazza112]

Hi Laura

 

Yes, that letter's fine to send off to them,they won't accept a wright off unless you can show them medical records to back that up.

So be propared for them to reject your plea, as more than likely they will.

That's why i explained to you in my PM about contacting a company to deal with this.

 

Gaz

 

 

 

M & Gaz what are your comments on something like this to send with a budget sheet showing a shortfall for creditors, is it wrong to state "Any debt that may be owing" don`t want to word it wrong should I just say owing any advice appreciated will send on Monday. I haven`t named who the creditors are on the budget sheets or any balances just what the income is and daily living for a month

 

Dear Sir-Madam

 

Reference:

 

Please find enclosed a copy of my personal budget sheet which gives details of my present financial circumstances

 

As you can see my outgoings are more than my income and I am experiencing extreme financial hardship. I would be grateful if you would consider writing off any outstanding debt that may be owing to your company? I have always taken very seriously my financial responsibilities but unfortunately my circumstances are so bad that I cannot realistically maintain payments of any kind. As a gesture of goodwill I am want to offer a £1 token payment every month to all creditors, could you please send details to enable me to do this?

 

I have a brain injury & mental health which as deterioated so badly in the last 24 months that I am now dependent on others my situation is permanent, my level of debt is having serious effect on my physical and mental wellbeing.

 

I would also request as I have done previously that you refrain from telephoning my home or making arrangements to visit my home as I am unable to deal with matters myself and from what I understand you should not discuss my affairs with my wife who does not wish to discuss matters anyway

 

Yours faithfully

********

[Laura Cooke]

Hi Gazza

 

Yhanks but as I told you I don`t want to use medical letters as the people in my hubbie`s Dr`s are all local ladies one is the daughter of a friend I couldn`t handle the embarrasment of them knowing our business we know it`s confidential but you can bet they discuss it

[Gazza112]

Laura if your going to send in letter's asking for the dept to be completely wiped out, you will need medical letters to back up your case.

The creditors are not going to take your word for it, they will need proof.

 

Gaz

[diddydicky]

you don't need to show them medical records to back it up - they will ask if they don't believe you- and you can cross that bridge when you come to it

 

i would download the CCCS or payplan budget sheets from their websites and fill those in as that is the way they and the courts work out your disposable income

 

do not be afraid to add in amounts for you healthy needs AND a modest annual holiday prior to arriving at a disposable income

 

Then you divide that amount by all your unsecured creditors and NOT showing preference to this one (that way lies the road to further heartache)

 

the CCCS and payplan sites show you how to pro rata amongst the various debts

 

 

Remember that if you do this properly and the creditor won't play ball- if he takes you to court he won't get a penny more- and most likely, as a punishment for wasting his time the judge may award them a lot less

 

(you see judges bias also extends to slapping down greedy creditors in the appropriate circumstances)

 

just because one creditor is being pushy does not entitle him to any more than the pro rata amount according to his debt

[diddydicky]

Hi diddydicky, would be interested to know your thoughts on the unenforceability aspects of Laura's agreement (2003), I have a similar one.

 

Thanks for the quoted paragragh in your next post and the related comments. Do you think some judges rule against defences because the defence is built around denial of the existence of a legally binding contract as opposed to what you suggest, in other words you'd be in court solely to disprove the legality of the contract which you accept exists?

 

it is easy to forget in all the hype and heightened emotions that the subject creates - that judges are human too and will, just like everyone else sometimes allow their own personal feelings to affect their decision making process,

 

how you conduct yourself in court will go a long way towards the outcome

 

there is an old adage that says "first impressions last longest"

 

there is another one that says

 

"You don't get a second chance to make a first impression"

 

If you give the judge the impression,with you manner or your evidence and the way that you present it - that you are "on the fly" or that you are some sort of urban consumer credit warrior

 

then don't be surprised if he shows you by his decisions that he has seen it all before and knows how to deal with it.

 

You will NEVER (IMO) beat a judge in court in a battle of wills- he has too many aces up his sleeve!!

[Laura Cooke]

Thanks DD I filled in a budget sheet off the National Debtline as advised by Gazza however lots of things are not listed on there for your car hubbie can`t drive but contributes to my car as I take him everywhere doesn`t allow for smoking which he does whilst this can be seen as a luxury how does anyone suggest that you can stop a brain damaged person from doing this last time we had him in hospital he pulled all his tubes out and was trying to get dressed as he wanted to go home to smoke, it doesn`t allow for holiday`s if I didn`t get a annual break I`d crack up it`s a change of scenery more so for me it`s never a break

 

M and M suggested getting my total outgoings to £0 up until last month CCCS was showing a surplus of over £130 but they wasn`t allowing for all sorts and I felt there was pressure to find a unrealistic amount for the creditors they say it as to show a £100 surplus a month before they can help they allowed £70 a month for cigs this is way out that`s not even half of what it costs me for my hubbie hese at home all day nothing else to do all he will do is watch TV, CCCS don`t allow for holiday`s or any social event (Christmas, birthdays, weddings) yes they might be regarded as luxuries but they do happen it is reality what I am meant to do stop living, I don`t drink or smoke but I do want a life looking after my husband I need to have some luxuries

 

My first budget I worked out yesterday left a surplus of £8 for 5 creditors (6 accounts) or as m and m suggested I could have a £0 total and offer £1 gesture of goodwill?

 

We have no secured debts hubbie only as credit card debts, we have no arrears on any household bills etc, we rent our property. I have 3 credit cards myself if I was wanting to avoid debt I could throw them in as well had them for around 10 years, I could supply paperwork from my own sources about my hubbies condition but as I said don`t want to use hubbies Dr hese near on useless and staff too local, he never even filled the forms in sent by DVLA to revoke my hubbies licence

 

I have been in court on a few occasions I did my disabled sons bank charges with the good help off cag in 2006, I went on to do a wasted costs the bank never turned up

 

I have been to HM Revenue and Customs tribunal and won with help of a friend by the way 2 requests to them for sars were ignored

 

I have been to 2 medical tribunals and won both times without the claimants being there

 

I still find this process daunting and worrying and without the great support you can get off cag and other sites don`t think I could cope I`m not a confident person like I used to be but I`m able but totally agree with DD these judges are not fools they see through that and don`t like clever dicks so to speak your best speaking as it is I have found they like and expect that and respect you they do feel sorry for you all those I have dealt with have

 

I`m still fond of the term "You can`t get blood out of a stone" if a judge awards more than I am offering so be it I can`t do anything about that, but not one of the 5 creditors as supplied a cca yet that`s enforceable only had the 2 off MBNA, Lloyds Tsb can`t locate theirs and heard nothing from the 3 remaining creditors Halifax, CITI and Capital One

 

Would you say the letter I intend to send is ok? should I mention who each creditor is? I have left that blank as it left £0 to offer. I needed to mention the telephone calls and visits as I`m not allowed to discuss my husbands affairs and as he cannot speak I`m the one suffering the hassle from these companies, they know all this I have reported them previously and the calls stopped, what annoyed me was the early morning and late evening calls I don`t get much sleep as it is so sometimes if my hubbie is still asleep I grab 5 minutes these morons were tiring me out especially when the calls were on the hour every hour

Edited January 28, 2010 by Laura Cooke

[diddydicky]

the 100 surplus is ONLY for them to make an arrangement

 

you disposal income is what it is and if it is 10 quid or zero, or even minus 10 quid then that's what is shared between your unsecured creditors

 

I have to tell you that as renters you are in a VERY strong negotiating position.

 

 

you ARE allowed to make provision for an annual holiday so put that down z( 1 would say personally that saving 800 pounds for example is not unreasonable,

 

further if you hubby smokes there is no reason not to put down a reasonable amount for cigarettes

 

None of your cases WILL get to court- the creditors are business people and even allowing for the fags can see that they would be throwing good money after bad

 

stick to you disposable income as what you can COMFORTABLY afford to pay and not stretch yourself

 

if it is joint income it is to cover all of your joint unsecured debts

 

if your creditor doesnt like it then its tough titty

 

tell him in the letter that you cannot be expected to go backwards and have an increasing debt therefore if he does not agree to suspend interest you will have no alternative than to stop paying altogether and if he wants to take you to court you will rely on the court to excercise their discretion.

 

You have the upper negotiating hand so be bullish!!