Cap1 & CCA return

[ian1969uk]

Right, this is going to them first thing in the morning:

 

Rachel Mason

Trading Standards Officer

Community Protection Services

Trading Standards

PO Box 65

Vancouver House

Gurney Street

Middlesbrough

TS1 1QP

30/5/2007

Dear Ms Mason

Re: Alliance and Leicester Credit Card (provided by MBNA).

I am in receipt of your letter dated 25th May 2007, the contents of which are noted.

I am most unhappy with the conclusion that you have reached and would wish you to reconsider as a matter of urgency. Your letter contains many inaccuracies, and these misconceptions appear to have affected the conclusion you have reached.

You state that MBNA have provided me with a copy of my agreement. This is clearly not the case. They have supplied me with a copy of an application form which cannot be mistaken for a fully regulated agreement. Ian McCartney of the DTI has replied, when written to about this issue, that it is a breach of the Act to send an application form rather than an agreement in response to a request under Section 78 of the CCA 1974. This is precisely what MBNA have done.

Furthermore, the application form they sent me has never been signed by MBNA, so any assertion from them that this document constitutes an executed agreement is ridiculous. An agreement is only executed on the signature of both debtor and creditor. Therefore, MBNA cannot claim to have ever had an executed agreement in relation to this account. As it is a copy of the EXECUTED agreement that they are required to send me in response to a Section 78 request, they simply cannot have complied.

Moreover, the application form they sent me lacks every single prescribed term required under the CCA 1974. You state that there are different rules for different agreements. This may be true to an extent but ALL agreements for fixed sum or running account credit must have at least the following terms:

• A credit limit
  
• A rate of interest
  
• A schedule of repayments

This document sent to me by MBNA has none of these, and so cannot possibly constitute an enforceable agreement.

Finally, your letter makes no mention of the serious breach of Section 85 (CCA 1974) committed by MBNA in relation to this account. I explained previously what Section 85 requires of the creditor, and as I have now demonstrated without doubt that MBNA have no executed agreement in relation to this account, it follows that they can NEVER have complied with Section 85. I still await your comments on this issue.

I feel completely let down by Trading Standards as an enforcement agency that was, please remember, set up to protect the interests of the consumer.

I have demonstrated clearly that MBNA remain in breach of my request under Section 78 of the CCA 1974. I would like to add that, as well as the issues already described, Section 78 requires that they also send a signed statement of account and a copy of any documents referred to in the agreement. MBNA have done neither. A creditor cannot have fully complied with Section 78 until all of the required documents have been produced. How can you state that MBNA have complied when they haven’t supplied these documents to me?

Please reply as a matter of urgency stating your intended actions now I have made your errors clear to you. Should you maintain that you will not pursue MBNA any further in relation to these matters, please supply me with full details of your Manager and also full details of your complaints procedure.

Is it really too much to ask that Trading Standards perform the functions they were created for when such a clear breach is presented to them?

I await your swift reply.

Yours sincerely

ian1969uk

[Sparkie1723]

Its about somebody somewher "investigated" the TS, but who do you report a useless govt body to .........the B****** govt so what chance have got ....zilch..

I am sick to death of the OFT the TS the Information Commissioners Office you name it, not one have them have got th guts or backbone to take these finance companies on, on our behalf because the Banks have more money than them to employ the top QC 's, who are the most dodgey people you can come across.

 

My Dad used to say to me when I was young "Lad you will never find an honest millionaire" and these banks are more than millionaires ....with our money...Thats a joke isnt it ....they fight us with OUR money paying for their legal fees.

 

What a laugh, ....we call them incompetent idiots ....who are the idiots really??

 

 

sparkie

[davey77]

wow i can see why you are angry 'angry cat'! How utterly useless TS are. What's the point of having laws when they decide when and how to enforce them! Personally i would reply with the quote that's floating around on here:

 

RT Hon Ian McCartney MP

Minister for Trade Investment and Foreign Affairs

In relation to the Consumer Credit Act 1974 (Credit Card Agreements): “It is also a breach of the Act and the Regulations to send the application form rather than a true copy of the agreement.”

 

Just starting out on the TS route myself and sending the letters off tomorrow and thursday. Guess it's pot luck how they act upon it then!

 

Sorry i didn't read that slowly. Thought it was from Angry Cat but it was from ian1969uk.

Yes though, thats a great letter!

[lookinforinfo]

I think where both TS and the OFT have gone wrong is that they don't seem to realise, as Ian obviously does, is that s.77/78 particularly specify that

the creditor should supply the EXECUTED COPY and not

just a true copy.

[JonCris]

Right, this is going to them first thing in the morning:

 

Rachel Mason

Trading Standards Officer

Community Protection Services

Trading Standards

PO Box 65

Vancouver House

Gurney Street

Middlesbrough

TS1 1QP

 

30/5/2007

 

 

Dear Ms Mason

 

Re: Alliance and Leicester Credit Card (provided by MBNA).

 

I am in receipt of your letter dated 25th May 2007, the contents of which are noted.

 

I am somewhat astonshied with your conclusions and would ask you to reconsider them as a matter of urgency. Your response contains many inaccuracies, and these misconceptions appear to have affected the conclusion you have reached.

 

You state that MBNA have provided me with a copy of my agreement. This is clearly not the case as they have supplied me with a copy of an application form which cannot in anyway be mistaken for a regulated agreement as required in law.

 

I draw your attention to the fact that the Right Honorable Mr Ian McCartney Minister of State at the DTI has replied, when writing about this precise issue, that it is a breach of the Act to send an application form rather than an agreement in response to a request under Section 78 of the CCA 1974. Yet this is precisely what MBNA have done an unlawful action which you have supported.

 

If you require a copy of the said correspondence I refer to I should be only to happy to provide it.

 

Furthermore, the application form they sent me has never been signed by MBNA, so any assertion from them that this document constitutes an executed agreement is clearly very wrong.

For your information an agreement is only executed on the signature of both debtor and creditor. Therefore, MBNA cannot claim to have ever had an executed agreement in relation to this account. As it is a copy of the EXECUTED agreement that they are required to send me in response to a Section 78 request, they simply cannot have complied as you mistakenly assert

 

Moreover, the application form they sent me lacks every single prescribed term required under the CCA 1974. You state that there are different rules for different agreements. This may be true to an extent but ALL agreements for fixed sum or running account credit must have at least the following terms:

• A credit limit
  
• A rate of interest
  
• A schedule of repayments

This document sent to me by MBNA has none of these, and so cannot possibly constitute an enforceable agreement.

 

Finally, your letter makes no mention of the serious breach of Section 85 (CCA 1974) committed by MBNA in relation to this account. I explained previously what Section 85 requires of the creditor, and as I have now demonstrated without doubt that MBNA have no executed agreement in relation to this account, it follows that they can NEVER have complied with Section 85. I still await your comments on this issue.

 

I have demonstrated clearly that MBNA remain in breach of my request under Section 78 of the CCA 1974. I would like to add that, as well as the issues already described, Section 78 requires that they also send a signed statement of account and a copy of any documents referred to in the agreement. MBNA have done neither. A creditor cannot have fully complied with Section 78 until all of the required documents have been produced. How then can you state that MBNA have complied when they haven’t supplied these documents at all?

 

Please be advised that I am well versed in these matters and now I have again brought these to your attention I ask that you reconsider your present position.

 

Please also be advised that should you maintain that you will not take any further action regarding this blatant disregard for the law by MBNA I will, as well as considering civil action, institute a complaint against both you and your agency at the highest level.

 

I apoligise for being so forthright but if we the ordinary consumer cannot rely on a reglatory authority to both understand and enforce the law to whom do we turn?

 

I await your reply at your earliest convenience.

 

Yours sincerely

 

ian1969uk

 

Few suggested admendments in red

[ian1969uk]

Very good, thanks, I'll use the amended version!

[joneshousehold]

Just as a matter of interest, I have also been in touch with TS. They have two different sections. One deals with criminal offences and another deals with civil matters. The failure to supply an agreement after 12 working days plus one month is, according to my TS a criminal matter and that is what she is dealing with. She has said they are reluctant to prosecute as they are under resourced, a fact that has also been confirmed by a senior office with the authority. She has also said that once she has sorted out that side (presumably by getting a copy of the agreement and all relevant documents), she will no longer deal with any complaint but I can pursue it with the civil side of the authority (ie any errors within the body of the documents that may render the agreement unenforceable)

I only give this information as I suspect the person who has written to you is on the criminal side and may not be able to deal with the civil side.

Mind you it's still a useless answer you were sent!

[hellhasnofury]

What an amazing thread guys, so much wisdom, facts and tenacity. I love it.

 

I am so interested in the TS response. I truely don't believe they have a clue. Everytime I have rung the oft, ts fsa and fob, I have felt very frustrated, because they just fob you off and they are not interested,

 

I have just been sent a county court claim from hfc for the balance of a credit card that I have been paying monthly to by payplan for over a year. The balance was £8,200, then they have put on a collection charge of over £1,300 and interest to boot, With the cort cost and solicitors fee. It is now up at £10,000. The cheeking bleeders have request interest at their contractual rate of £5.19 daily.

 

I might as well topple over now according to ts If the application form they sent me as the credit agreement is correct.

 

That was going to be my defence and I was going to counterclaim for the penality charges and all of the interest that I had paid them over the years which would have cut the debt owing by 90%. Then I would have offerred them a good will gesture to get rid of them for ever.

 

I might as well give them my house now

[ian1969uk]

Don't think like that. Despite the clowns at Trading Standards etc, the law in a courtroom is a very different beast. If, as is the case with most applications they try to pass off as agreements, it lacks some/all of the prescribed terms, they haven't a hope of getting a judge to enforce it. That's as long as you point out the errors in the document to the judge, he/she is not going to do your work for you.

 

Can you scan what they sent you so we can see how it holds up?

[hellhasnofury]

Don't think like that. Despite the clowns at Trading Standards etc, the law in a courtroom is a very different beast. If, as is the case with most applications they try to pass off as agreements, it lacks some/all of the prescribed terms, they haven't a hope of getting a judge to enforce it. That's as long as you point out the errors in the document to the judge, he/she is not going to do your work for you.

 

Can you scan what they sent you so we can see how it holds up?

 

I am sorry, but don't have a scanner. Idid take a picture of it but I forgot to blank out my own personal details. I could email it to you if permitted

[maybelline]

It is really up to us the consumers, to put the PRESSURE ON Trading Standards who appear to be more intersted in poor old joe bloggs up the market selling his bananas by the Imperial Pound weight, rather than by the EU Kilo.

Anyhow, what the hell was wrong with 16 ounces to the pound and 8 pints to the gallon..."

 

this has, I understand, now been dropped! no longer can be done for this, so, be persistent!

Brussels drops bid to ban Imperial measures — EUbusiness - EU business, legal and financial news and information - EUbusiness.com

[hellhasnofury]

I am sorry, but don't have a scanner. Idid take a picture of it but I forgot to blank out my own personal details. I could email it to you if permitted

 

I have managed to I think download the image is anyone could please comment.

 

[ian1969uk]

Well, if that's all they have then you can quit worrying right now.

 

Problems with this include:

 

1. It's an application form, not an agreement.

2. It has no credit limit.

3. It has no interest rate.

4. It has no schedule of repayments.

5. It has no details of default charges.

 

This falls squarely into the completely unenforceable category, even in court.

[pford]

yep its an application form

 

agree with ian on it

[davefirewalker]

I concour........its an application form!

 

I would re-itterate my request for the original signed document and tell them that they are in default and as such cannot continue to chase the debt, add interest, or start any court action etc.

 

Dave

[Jeff2000]

Hello,

 

 

I agree, it is an application form!

 

 

That's 4 for 4!

 

 

Jeff.

[hellhasnofury]

I concour........its an application form!

 

I would re-itterate my request for the original signed document and tell them that they are in default and as such cannot continue to chase the debt, add interest, or start any court action etc.

 

Dave

 

Hello and thank you all for your observations and advice.

 

Unfortunately Dave the have just taken me to court and added a £1,343 collection charge and asked for interest at their contractual rate of £5.19 daily until settled:shock:

 

I need to send a letter to them to question these charges etc. unfair paractice in debt collection. I did write to them to tell them that the account was in dispute, but they issued it regardless.

 

I have send my acknowledgment of service and intend to defend, So I might need help here.

 

Anyway again thanks, that has made me feel a bit better:D

[ian1969uk]

Your defence is simple and all you need is contained within Sections 61 and 127 of the Consumer Credit Act 1974.

[ncf355]

£1343 collection charge?

 

Have they really?

 

Well, they can stick that right up their rse , cant they

 

I completely agree with Ian on this one, that document is a (not very funny) joke

 

 

Section 85 also gets added to the list as I cant see how they could have complied with S85 using that toilet paper shown above

 

 

 

Every example of intimidation I see like this makes mer all the more determined to screw these people into the ground

[joneshousehold]

Hell... have a look at some of the other threads on this forum. Several other creditors have tried to take court action and then got cold feet when met with a robust defence. Here are some I have found

http://www.consumeractiongroup.co.uk/forum/legalities/25668-curious-twist-two-cca.html

http://www.consumeractiongroup.co.uk/forum/general-debt/48764-being-taken-court-joint.html

Also a bit of information on the agreement vs application form debate

http://www.consumeractiongroup.co.uk/forum/general-debt/74733-credit-agreement-application.html

[AnimalMagic]

Anyone know what the offence is regarding the creditor taking action while the debt is in dispute?

[joneshousehold]

It depends what the reason for the dispute is. If it's for non-compliance of Section 77, it is S77(4) which says

(4) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

For Section 78 it's S78(6) which says exactly the same. The important phrase is 'he is not entitled..to enforce the agreement' and that involves taking action to collect the debt.

[pford]

You may also need to quote paragraph 11 of Schedule 3 of the CCA 2006 in your denfence as some judes think the law has now changed now the cca 2006 came in

 

15 Enforceability of regulated agreements

 

In section 127 of the 1974 Act (enforcement orders in cases of infringement) subsections (3) to (5) shall cease to have effect.

 

Your attention is drawn to paragraph 11 of Schedule 3 of the CCA 2006.

 

11 The repeal by this Act of—

 

(a) the words “(subject to subsections (3) and (4))” in subsection (1) of section 127 of the 1974 Act,

 

(b) subsections (3) to (5) of that section, and

 

© the words “or 127(3)” in subsection (3) of section 185 of that Act,

 

Has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

will quote Richard spud on this

 

While at the time of writing I have not referred to the relevant transitional and saving Statutory Instruments; it is my interpretation of paragraph 11 of Schedule 3 of the CCA 2006 that the discretion of the court cannot be exercised when considering improperly-executed agreements under s.65(1) of the CCA 1974 in relation to agreements executed prior to the 6th of April 2007. On the contrary, I submit that the discretion of the court can only be exercised in this respect to improperly-executed agreements under s.65(1) of the CCA 1974 in relation to agreements executed after the 6th of April 2007 – and then subject to any prejudice caused to a Debtor or the culpability of a Creditor. I opine that the objective of s.15 of the CCA 2006 is to provide the Court with discretion in all cases when considering applications for Enforcement Orders sought under s127 of the CCA 1974 post 6th April 2007.

[Sparkie1723]

Animal Magic

 

Have a look at the OFT guidelines on pursuit of debtors by creditors, also Section 40 of the Administration of Justice Act ...wrongful pursuit of a debt.

Its the word wrongful you have to look at here.

might be useful

 

sparkie

[Pliny the Penuriosus]

Your set-aside application should include the statement that the court has made an error in law & then explain why