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MBNA CCA and cancellation rights

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Have received a CCA copy for an internet applied card from 2006 that seems correct in all the prescribed terms - however, as part of the agreement, not the terms and conditions, there is the following

 

YOUR RIGHTS TO CANCEL

 

Once you have signed this agreement, you will have a short time in which you can cancel it.

We will send you exact details of how and when you can do this.

 

This is just above the signature boxes (or tick boxes as it's an internet agreement)

 

As i understand it, as part of complying with the CCA request, they must send the agreement, T &C s and any document referenced by the agreement - there is nothing in which they have sent that includes the alleged rights to cancellation documentation that may have been sent - question is, is that lack of cancellation document sufficient to place the account in dispute as

 

1. They haven't fully complied with the CCA request

2. As my reading is that by offering cancellation rights, it is then a fully cancellable agreement under the CCA 1974 and that means they should have sent a signed copy of the agreement to me along with the option to cancel and if they didn't then the agreement has not been executed properly.

 

If so, should I write advising them of this error and placing the account in dispute, or send a SAR request and see if the cancellation was ever actually sent out before writing in dispute?

 

Cheers in advance for replies

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Hi,

About 8 months ago, I requested MBNA to send me all the agreement quoting section 78 of the consumer credit act 1974. I have just received a letter from them which states:

 

We enclose a copy of original agreement together with a copy of the agreement currently in placea and signed statement of the account'

Unfortunately the copy of the agreement that we have retrived is incomplete, and at the moment, we are unable to provide a complete copy.

While we try to locate this we confirm that we will not issue court proceeding against you to recover the amount owed to us. However, please be aware that you should continue to make payments to your account, this is because your debt continues to exist and has not been extinguished, so you continue to have an obligation to pay us. As such, we are entitled to contact you to request payment if you fall behind on your payments. We are also entitled to report your repayment patterns to Credit reference Agency, including where appropriate, registring a default against your name, this has recently been confirmed in two high court decisions: McGuffick V RBS & Carey V HSBC.

 

---------- Please advise me how do I move ahead in order to get rid this debt! after receiving above letter from MBNA CC.

Thanks,

Aaron

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Hi Aaron06

Under the Mcguffick ruling your obligation is not liquidated therefore you should keep paying the debt, under carey to meet thier obligations under 1974 CCA all the banks need do is provide a construction of what is perceived to be what the original agreement looked like, however the bank still needs a copy of( The original agreement) for the courts to make an enforcement order. that is to say although the banks can send you data to CRAs and employ DRAs to harass you they cannot enforce payment from you. only the court can decide on the validity of your agreement,

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I read your post with interest. sadly what the bank said is true, the position of the courts now is that if they cannot produce the agreement, they cannot enforce it, but the debt is still there. It was the case in the past (just about a year ago) when you could have them write the debt off and get them remove any adverse credit reference but not again. And for newer debt (since 2006-7) they could actually enforce the debt if they produce a reformed agreement.

 

But the fact remains that they cannot collect the money, they cannot send baillifs, but they can send letters upon letters which you can simply ignore (depending on your situation and how resilient you are) you may just ignore it. But if this is the only debt and you are mindful of your credit rating...then you could negotiate.

 

You should also be aware that after 6 years, you can apply to have the debt statute barred, after which they cannot chase or contact you for it again.

 

Hope this helps.

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I agree with AC

The clearly biased judements favour the banks, but as he says only a court can enforce, I beleive that the judiciary have gone as far as they dare without being overtly biased in favour of the banks, apparently it's immoral for consumers to avoid debt but ok for banks or insurance companies to peruse thier options

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