Cap1 & CCA return

[standingupformyself]

I wish I was more informed. I have posted on the forum you suggested, as well as on my own thread in MBNA. Am I right in thinking that it is actually a criminal act not being able to provide me with the copy of the agreement?

[ian1969uk]

That letter from MBNA is just what you need, an admission that they don't have the agreement.

 

Despite their valiant attempt to convince you that they can still make you pay, it's clear that they cannot.

[JonCris]

I wish I was more informed. I have posted on the forum you suggested, as well as on my own thread in MBNA. Am I right in thinking that it is actually a criminal act not being able to provide me with the copy of the agreement?

 

Yes after 42 days it becomes a criminal offence not to have complied with your request

 

The 'letter' they have sent you is a complete & utter load of twaddle. They have not complied with any part of the CCA & whilst the debt does exist they have ABSOLUTLEY no means of enforcing it.

 

In other words no properly executed agreement = no payment - PERIOD

 

Once they know this (so tell em) & nevertheless continue to pursue you for an unenforcable debt they could be guilty of criminal harassment including having their fitness to hold a credit licence brought into question by the OFT

[SteveH2508]

Or at least a Consumer Credit Licence revocation?

 

Els

 

ROFLMAO

 

Loss of CC Licence is the same thing for a credit business! Anyone with shares in these and other similarly placed CC companies whose names begin with M (Much Bluster No Agreements), probably ought to sell 'em!

 

Pun alert - the house of cards could be collapsing. They've lost their marbles.

 

This makes me feel all warm and tingly inside!

[standingupformyself]

do you think this may make them settle my claim quickly? surely better to wipe the debt that way than trying to enforce the unenforceable?

[Perseus]

standing..push to reclaim your charges, then ask for all Credit Reference files to be expunged, and then (if there is a balance), offer them 10% in full and final to close the account.

If they want to take you to court/issue a default/involve DCA's etc it will be fruitless - as no agreement - NO AGREEMENT! - no chance in the world that a court would allow enforcement of a debt on say-so!

 

Nice one

[standingupformyself]

Hi Perseus. I am claiming £2017.00 plus interest at 24.9% of £1478.33, which totals £3495.00, I owe around that amount so if my claim was sucessful it would clear the debt, which of course is rising by about £2.15 per day.

I think, with the help of people much more knowledgeable than myself, I need to find the wording for a letter to MBNA explaining to them that I understand the situation that we find ourselves in, and hopefully pushing them into settling my claim sooner rather than later.

 

I would be very very grateful for all help and advice, thank you so much

[JonCris]

Sorry standup but what are you talking about.

 

Is your claim in excess of what you owe? If not just don't pay anything more - end of.

 

In fact once that is out of the way I suggest that you spend a considerable amount of time reading various interesting threads on the site.

 

You may then find that some members in a simular situation as you have actualy reclaimed the money they have already paid prior to discovering the creditor had no means of enforcing payment of the debt

[davefirewalker]

Sorry standup but what are you talking about.

 

Is your claim in excess of what you owe? If not just don't pay anything more - end of.

 

In fact once that is out of the way I suggest that you spend a considerable amount of time reading various interesting threads on the site.

 

You may then find that some members in a simular situation as you have actualy reclaimed the money they have already paid prior to discovering the creditor had no means of enforcing payment of the debt

 

 

I concour.......

 

if they dont have or cant supply the agreement.......

 

1 they cant chase you

2 they cant sell the debt

3 they cant do anything ....

 

if they have passed the 12 working days the agreement is unenforceable until they do supply it !!

 

its your call........make them sweat!

 

Dave

[AnimalMagic]

Please can someone with legal knowledge take a look here and try and answer the two queries at the bottom?

[JonCris]

Answered Animal

[angry cat]

Hi Guys!

You will see from this link that I have been recently advised by TS, who disagree that Morgan Stanley have complied with my S78 CCA 1974 request.

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-346.html?highlight=angry+cat#post845003

 

TS had requested that MS inform me in writing exactly how they consider that they have complied. The MS letter has not been forthcoming, therefore I complained to TS and they again requested the promised letter from MS Law Dept...MS, Oh we sent it on 30th April...AC, Oh no your didn't!

TS, please send it again!

 

Anyhow, eventually the long awaited letter has arrived and it is from Karla Kenny and not MS Law, it reads as follows:-

 

"Dear AC

 

Thank you for your letter dated 23 February 2007. (3 months to answer!)

 

Further to our discussions with Trading Standards, I write in order to provide clarification on the points you have raised in your correspondence. Whilst I can appreciate your request that we communicate with you throught Trading Standards I wanted to ensure that you received a direct response to your queries. (I reported them to TS for non compliance resulting in a Criminal Offence)

 

I note that you do not accept that the copy of the executed agreement provided to you satisfies our obligations to you under section 78 of the Consumer Credit Act 1974 ("the Act"). You also request that we remove the default registered against you with the credit reference agencies. Whilst our view regarding the correct provision of a copy of the executed agreement currently differs with that of Trading Standards, our position remains as follows.

 

TRUE COPY OF THE EXECUTED AGREEMENT

 

Because you are raising a technical point under the Act, the only way we can fully address your query is to set out some of the law on the way the Act operates.

 

Section 78(1) of the Act states that amongst other things, the creditor shall give the debtor a copy of the executed agreement.

 

HOW DOES THE ACT DEFINE AN 'EXECUTED AGREEMENT'?

 

'Executued agreement' is defined in section 189 of the Act as, "a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement...".

 

WHAT DO THE RULES SAY ABOUT PROVIDING A COPY?

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 ("the Regulations") made under the Act deal with how we are to provide a 'copy' of an agreement.

 

These Regulations provide that any copy of the agreement supplied to a debtor should be a 'true' copy. Regulation 3(2) provided that a copy may omit certain information, including the signature box, signature and date of signature.

 

So, a "copy" of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included.

 

WHAT HAPPENS ID THE ORIGINAL AGREEMENT HAS BEEN VARIED SINCE IT WAS ORIGINALLY SIGNED.

 

The Regulations also set out what should happen where the agreement has been varied since it was signed, which happened in your case.

 

Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied.

 

CONCLUSIONS IN RELATION TO THE DOCUMENT WE HAVE TO PROVIDE

 

1. a "copy" of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included;

 

2. the definition of "executed agreement" refers to a document EMBODYING THE TERMS of the regulated agreement. When this is read with Regulation 7 -for agreements that have been varied - a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms.

 

3. we have provided you with a copy of the agreement as varied.

 

DEFAULT STATUS

 

Due to the circumstances on your account at the time we issued the notice of default, we cannot agree that the filing of the default information was incorrect. We therefore cannot agree to your request that we remove the default applied and amend the payment history recorded on your credit file in relation to your Morgan Stanley account. This is because, as responsible lenders, we have a duty to record accurate information with the credit reference agencies we report to. As you were in arrears on your account, we were obliged to issue the notice of default and subsequently register with the credit reference agencies.

 

I trust this satisfactorily explains matters for you. However, should my explanation in any way not meet with your expectations or you have additional information please do not hesitate to contact me directly or through Trading Standards.

 

Thank you for taking the time to provide us with your comments. We do take customer feedback on board as an integral way to improve both our procedures and products.

 

Yours sincerley

Karla Kenny".

 

Sorry for any typos.

 

I will discuss the MS letter with TS on Tuesday, but in the meantime I would be grateful for any learned opinions.

 

Love AC

[JonCris]

Hi Guys!

You will see from this link that I have been recently advised by TS, who disagree that Morgan Stanley have complied with my S78 CCA 1974 request.

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-346.html?highlight=angry+cat#post845003

 

TS had requested that MS inform me in writing exactly how they consider that they have complied. The MS letter has not been forthcoming, therefore I complained to TS and they again requested the promised letter from MS Law Dept...MS, Oh we sent it on 30th April...AC, Oh no your didn't!

TS, please send it again!

 

Anyhow, eventually the long awaited letter has arrived and it is from Karla Kenny and not MS Law, it reads as follows:-

 

"Dear AC

 

Thank you for your letter dated 23 February 2007. (3 months to answer!)

 

Further to our discussions with Trading Standards, I write in order to provide clarification on the points you have raised in your correspondence. Whilst I can appreciate your request that we communicate with you throught Trading Standards I wanted to ensure that you received a direct response to your queries. (I reported them to TS for non compliance resulting in a Criminal Offence)

 

I note that you do not accept that the copy of the executed agreement provided to you satisfies our obligations to you under section 78 of the Consumer Credit Act 1974 ("the Act"). You also request that we remove the default registered against you with the credit reference agencies. Whilst our view regarding the correct provision of a copy of the executed agreement currently differs with that of Trading Standards, Well it would wouldn't it our position remains as follows.

 

TRUE COPY OF THE EXECUTED AGREEMENT

 

Because you are raising a technical point under the Act, the only way we can fully address your query is to set out some of the law on the way the Act operates.

 

Section 78(1) of the Act states that amongst other things, the creditor shall give the debtor a copy of the executed agreement. You execute an agreement only when you sign it. In case theres any misunderstanding an unsigned agreement is NOT executed

 

HOW DOES THE ACT DEFINE AN 'EXECUTED AGREEMENT'?

 

'Executued agreement' is defined in section 189 of the Act as, "a document, signed (shooting themselves in the foot then) by or on behalf of the parties, embodying the terms of a regulated agreement...". & they think they are cleverer than you

 

WHAT DO THE RULES SAY ABOUT PROVIDING A COPY? Nothing other than it MUST be a true! copy

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 ("the Regulations") made under the Act deal with how we are to provide a 'copy' of an agreement.

 

These Regulations provide that any copy of the agreement supplied to a debtor should be a 'true' copy. A true copy must include signatures otherwise it ain't what it claims to be (not exactly brain surgery) & again aren't they contradicting themselves. 1 minute it's a 'true' copy) see above) & the next it's simply a copy. Regulation 3(2) provided that a copy may omit certain information, including the signature box, signature and date of signature. correct but it ain't a true copy

 

So, a "copy" of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included. No it won't. This regulation is there to allow creditors to fullfill their obligations as per cancellation not to enforce the debt or T's & C's

 

WHAT HAPPENS ID THE ORIGINAL AGREEMENT HAS BEEN VARIED SINCE IT WAS ORIGINALLY SIGNED. Quite! It will depend on your contract but even so they will have to establish that you were advised of any variation well BEFORE it was enacted

The Regulations also set out what should happen where the agreement has been varied since it was signed, which happened in your case.

 

Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied.

 

CONCLUSIONS IN RELATION TO THE DOCUMENT WE HAVE TO PROVIDE

 

1. a "copy" of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included;

 

2. the definition of "executed agreement" refers to a document EMBODYING THE TERMS of the regulated agreement. When this is read with Regulation 7 -for agreements that have been varied - a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms.

 

3. we have provided you with a copy of the agreement as varied.

 

All just waffle. If they are unable to provide a properly executed 'signed' 'non varied' agreement then they are stuffed for whatever reason

 

DEFAULT STATUS

 

Due to the circumstances on your account at the time we issued the notice of default, we cannot agree that the filing of the default information was incorrect. We therefore cannot agree to your request that we remove the default applied and amend the payment history recorded on your credit file in relation to your Morgan Stanley account. This is because, as responsible lenders, we have a duty to record accurate information with the credit reference agencies we report to. As you were in arrears on your account, we were obliged to issue the notice of default and subsequently register with the credit reference agencies. We all know the arguments but if there is no valid agreement there is no consent given to process data

 

I trust this satisfactorily explains matters for you. However, should my explanation in any way not meet with your expectations or you have additional information please do not hesitate to contact me directly or through Trading Standards.

 

Thank you for taking the time to provide us with your comments. We do take customer feedback on board as an integral way to improve both our procedures and products.

 

Yours sincerley

Karla Kenny".

 

Sorry for any typos.

 

I will discuss the MS letter with TS on Tuesday, but in the meantime I would be grateful for any learned opinions.

 

Love AC

 

See red above Suggest you write back with a copy to TS pointing out there own contradiction in terms of their argument.

 

It was probably kicked back because the solicitors aren't prepared to get into this argument & try to mislead particularly as TS are taking an interest

[angry cat]

See red above Suggest you write back with a copy to TS pointing out there own contradiction in terms of their argument.

 

It was probably kicked back because the solicitors aren't prepared to get into this argument & try to mislead particularly as TS are taking an interest

 

 

Thanks JonCris-

 

Interestingly enough you will note that the following letter sent to davefirewalker is almost identical-

http://www.consumeractiongroup.co.uk/forum/show-post/post-760385.html

 

TS's view in respect of regulation 7 which states-

 

"7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, EVERY COPY OF THE EXECUTED AGREEMENT given to the debtor, hirer or surety under any provision of the Act other that section 85(1) SHALL INCLUDE EITHER -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied.

 

or

 

b) an easily legible statement of terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the actual executed agreement".

 

MS do not have a copy of the true executed agreement and stated last May 2006 in their Defence of my claim against them re charges, that they could not find it!

MS of course, settled prior to going to court. However I realise now that they could not have defended against my claim because they did not have the agreement...Hmm, Naughty!

Also re the unfair default that was registered against me, the charges amounted to more than the amount on the NOD default.

MS agreed and I have it in writing to remove the default as part of my settlement and it was removed but recently it has been re-added to my CRA file.

They removed it once but after re-applying it...MS refuse to remove the default.

 

Love AC

[JonCris]

Thanks JonCris-

 

Interestingly enough you will note that the following letter sent to davefirewalker is almost identical-

http://www.consumeractiongroup.co.uk/forum/show-post/post-760385.html

 

TS's view in respect of regulation 7 which states-

 

"7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, EVERY COPY OF THE EXECUTED AGREEMENT given to the debtor, hirer or surety under any provision of the Act other that section 85(1) SHALL INCLUDE EITHER -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied.

 

or

 

b) an easily legible statement of terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the actual executed agreement".

 

MS do not have a copy of the true executed agreement and stated last May 2006 in their Defence of my claim against them re charges, that they could not find it!

MS of course, settled prior to going to court. However I realise now that they could not have defended against my claim because they did not have the agreement...Hmm, Naughty!

Also re the unfair default that was registered against me, the charges amounted to more than the amount on the NOD default.

MS agreed and I have it in writing to remove the default as part of my settlement and it was removed but recently it has been re-added to my CRA file.

They removed it once but after re-applying it...MS refuse to remove the default.

 

Love AC

 

You may wish to quote the following:

 

The Information Commissioners opinion re unenforceable agreements dated 7th September 2006

 

According to LACORS (The Local Authorities Coordinators of Regulatory Services)

Quote:

In their opinion that where a creditor accepts there is no enforceable agreement they should not be permitted to ‘punish’ the consumer by placing a record of the default on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the CCA which makes it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed

 

Clearly this MUST apply to non existent agreements & as I have stated repeatedly on here where there is no valid agreement placing a default on record IS enforcing an unenforceable debt which is NOT permitted by LAW

[angry cat]

You may wish to quote the following:

 

The Information Commissioners opinion re unenforceable agreements dated 7th September 2006

 

According to LACORS (The Local Authorities Coordinators of Regulatory Services)

Quote:

In their opinion that where a creditor accepts there is no enforceable agreement they should not be permitted to ‘punish’ the consumer by placing a record of the default on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the CCA which makes it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed

 

Thanks for that Joncris:)

I had read that somewhere on another forum.

 

I will of course use the above but at present, I am piggy in the middle between MS & TS.

 

MS

"Whilst our view regarding the correct provision of a copy of the executed agreement currently differs with that of Trading Standards". (note currently!)

 

joncris

"Well it would wouldn't it".

 

Clearly this MUST apply to non existent agreements & as I have stated repeatedly on here where there is no valid agreement placing a default on record IS enforcing an unenforceable debt which is NOT permitted by LAW

[/quote

 

I will push for prosecution, TS say that they will not prosecute as ther is no case law that they are aware of to offer specifiic guidance in this area.

Obviously I am not satisfied with the TS reason for non prosecution. Therefore I have to put the pressure on, as I am not a pushover.

 

I will talk to TS after the bank holiday about the MS letter. I will also raise the CRA default issue.

 

Rest assured, I will go for MS all the way:-

CCA

Harassment

Defamation &

Damages for what they have done to me:

 

A so called valued customer who purchased PPI at the point of sale but that insurance put me at Risk and thus left me alledgedly in debt, a debt that I do NOT acknowledge...I have been ill since 2002 and now suffer from a long term illness.

 

Love AC

[joneshousehold]

According to the OFT

…the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

&

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

This was a standard response I received from OFT to my complaint and I have seen this wording elsewhere on the site.

[un1boy]

You may wish to quote the following:

 

The Information Commissioners opinion re unenforceable agreements dated 7th September 2006

 

According to LACORS (The Local Authorities Coordinators of Regulatory Services)

Quote:

In their opinion that where a creditor accepts there is no enforceable agreement they should not be permitted to ‘punish’ the consumer by placing a record of the default on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the CCA which makes it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed

 

Clearly this MUST apply to non existent agreements & as I have stated repeatedly on here where there is no valid agreement placing a default on record IS enforcing an unenforceable debt which is NOT permitted by LAW

 

Great quote - thing is, why does it say "if the creditor accepts the agreement is unenforcable?"

[un1boy]

Thanks JonCris-

 

Interestingly enough you will note that the following letter sent to davefirewalker is almost identical-

http://www.consumeractiongroup.co.uk/forum/show-post/post-760385.html

 

TS's view in respect of regulation 7 which states-

 

"7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, EVERY COPY OF THE EXECUTED AGREEMENT given to the debtor, hirer or surety under any provision of the Act other that section 85(1) SHALL INCLUDE EITHER -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied.

 

or

 

b) an easily legible statement of terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the actual executed agreement".

 

MS do not have a copy of the true executed agreement and stated last May 2006 in their Defence of my claim against them re charges, that they could not find it!

MS of course, settled prior to going to court. However I realise now that they could not have defended against my claim because they did not have the agreement...Hmm, Naughty!

Also re the unfair default that was registered against me, the charges amounted to more than the amount on the NOD default.

MS agreed and I have it in writing to remove the default as part of my settlement and it was removed but recently it has been re-added to my CRA file.

They removed it once but after re-applying it...MS refuse to remove the default.

 

Love AC

 

Can they supply the alleged default notices, to prove they complied to sec 88?

 

I doubt it, in which case they have not complied with thatsection either and the default has been applied unlawfully!

[davefirewalker]

Hi AC

 

it does look like we are in the same boat........

 

MS have been EXTREMELY quiet since I sent my last letter, in fact they have NOT replied to it or the last two fax's... methinks they are either up to something or panicing....probably the latter.

 

Dave

[humbleman]

VERY IMPORTANT

 

A lot of lenders are saying that they do not have to provide an agreement showing your signature, thats fine, BUT one would argue that whenever you fill in an application/agreement most of your personal details are in your own handwriting therefore a TRUE COPY should have your handwritten details and not a computer printout of their standard copy.

[adarling2006]

one could argue though that if they send out a copy of the agreement without your signature on it then it's not been properly executed, that's my understanding of it, which leads to the arguement with the banks that if they can't send out a signed copy then no such agreement exsists. just my Humble opinion.

[JonCris]

AC show TS the LACORS statement. It's originaly meant for them. They probably glanced at it then through it in the nearest bin

 

& what the hell do they mean there's "no case law" There doesn't have to be it's a criminal offence

[JonCris]

Almost forgot if TS will still not help tell them that you will report them to the Ombudsman for maladministration then do it!

 

It's about time that we started taking these chocolate teapots to task over their failure to do their task

[Jeff2000]

one could argue though that if they send out a copy of the agreement without your signature on it then it's not been properly executed, that's my understanding of it, which leads to the arguement with the banks that if they can't send out a signed copy then no such agreement exsists. just my Humble opinion.

 

 

Hi,

 

 

My thoughts exactly. If they do have a fully executed agreement, then it would be in their own interest to provide it.

 

We would then accept such agreements and come to some repayment plan with the creditor almost immediately. Saving time, costs etc.

 

Common sense really!

 

 

Regards, Jeff.