Cap1 & CCA return

[Perseus]

Nice one ian,

Keep on gunning for them!

P

[angry cat]

Deleted

[angry cat]

Deleted

 

AC

[Cornucopia]

and this is the reverse:-

 

 

 

these two images are all that I was sent.

 

AC

 

AC, I know 100% that MBNA/1st Credit recently had a charging order struck out against a claimant on the back of an agreement that looks exactly like yours!

 

The Judge gave them 30 days to produce the true agreement. Given that they hadn't in six months, I think that is unlikely, don't you?!

 

Regards,

 

Corn x:)

[Perseus]

Hi AC

 

If this is all they've produced under your CCA request, I don't think it's worth wiping parts of your anatomy on!

 

 

What do you recon Corn?

x

[jalex_uk]

This is the microfiche copy which MBNA sent me in response to my CCA request!

Does it cut the mustard? I think not.

Love AC

 

But it says "Credit Agreement," has your signature, the date, the right to cancel, etc etc etc on the front, and the back has the agreement T&Cs and also the interest rates which apply to you... why doesn't it properly constitute an agreement? Sincere apologies if I'm missing something obvious, I'm new to this!

[angry cat]

AC, I know 100% that MBNA/1st Credit recently had a charging order struck out against a claimant on the back of an agreement that looks exactly like yours!

 

The Judge gave them 30 days to produce the true agreement. Given that they hadn't in six months, I think that is unlikely, don't you?!

 

Regards,

 

Corn x:)

 

Hi Com, thats interesting!!

 

I made my request back in December 2007 and all that I was sent was the microfiche copy of the pathetic torn off slip...you can actually see the tear marks!!

 

Gavin Theobald wrote to me 15/01/2007 stating "I am pleased to enclose a copy of your application".

Thats it.

 

Anyhow, by this time they had already become in default and by 15 January 2007 MBNA had committed an Offence.

 

I wrote back stating that MBNA had not fulfilled their obligation under my request.

 

Since that time I have not heard a dicky bird out of them.

 

AC

[Peterbard]

AC, I know 100% that MBNA/1st Credit recently had a charging order struck out against a claimant on the back of an agreement that looks exactly like yours!

 

The Judge gave them 30 days to produce the true agreement. Given that they hadn't in six months, I think that is unlikely, don't you?!

 

Regards,

 

Corn x:)

Hi The old eyes arn't what they used to be but what aspects of the agreement are missing that would make it unenforceable?

 

Peter

[Perseus]

Its a tear off slip at the bottom of an application form.

It states 'this application will be sent to the USA for processing!'

No credit limit stated

No terms and conditions as refered to on the reverse - condition 2.1 13.1 1.11 1.8 are stated

And, I thought that if a judgement is made against a default, under the CCA - a creditor cannot apply interest to the debt!

It states 'We will charge interest before and after any judgement' in item 14 on the reverse?

 

Am I scratching,- it's an application - in contravention to the letter from the Rt Honorable's letter posted earlier.

[ian1969uk]

The tear mark along the top appears to be the same on both, indicating that they are part of the same document.

 

That, to me, may be enforceable in court as it would be a document, in whatever format, conatining all of the prescribed terms and signed by the debtor.

 

The hope is that it's an application form and therefore not an agreement, but the way the CCA 1974 is worded is that it doesn't matter what the debtor signs, it could be an old piece of toilet paper, if it has all of the prescribed terms then a judge has the option to enforce it.

[Perseus]

I think the fact that it was an application form, and they've just cut off the bottom - indicates they're worrying about producing documents headed 'Application Form' on CCA requests.

There must be some busy MIB's reading this....

 

Message to CCP's reading this;

Keep it up fellas, you're getting the jist of the thread now!

[davefirewalker]

yes i have a small problem with this one too

 

apart from pers' valid comments

 

i dont know if it makes it unenforceable though

 

 

Dave

[angry cat]

Okay Guy's,

I appreciate your varying views but no way, am I accepting this pathetic little torn off slip as a correctly executed copy of a Consumer Credit Act 1974 Credit Agreement and...where is the other part of the document????

 

Together with the following, which has not been provided to me:-

 

"Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due)".

 

AC

[ian1969uk]

I am not saying it's right, or that they have fully complied with S78, just that a judge may decide to enforce as it contains all of the required terms and is signed by you.

[ian1969uk]

My latest letter to our friends at MBNA:

 

Rachel Nixon

Customer Advocate Office Manager

Alliance and Leicester Credit Card

Customer Advocate Office

Chester

CH4 9FB

2/5/07

Dear Ms Nixon

Re: Account number xxxx xxxx xxxx xxxx

I am receipt of your letter dated 23rd April 2007, the contents of which are noted.

I would like to address the points raised in your letter.

• You state that you have requested a copy of my credit agreement to be sent to you. I have now received what you purport to be my credit agreement, and I thank you for your assistance in this matter. However, I must point out that what you have sent me is clearly a copy of an application form, not an executed credit agreement. This is, according The Department of Trade and Industry, a further breach of the Consumer Credit Act 1974. Moreover, the document you have sent me contains absolutely none of the prescribed terms required in an agreement regulated under the Consumer Credit Act. If this document is what you are relying on as my executed agreement, then it is completely unenforceable, even in a court of law. My request under Section 78 of the CCA 1974 remains outstanding, and I will give you a further opportunity to send me a true copy of any executed agreement that exists in relation to this account. I will reiterate, whilst your default continues, you are not entitled to enforce any part of the agreement, so your actions in continuing to demand payment, add interest and charges, threaten a default and threaten legal action, are clearly unlawful and will not be tolerated.

• You raise the point that the credit card mailer you send with reissued credit card serves as a copy of the credit card agreement in respect of Section 85 of the CCA 1974. I refute this completely. A generic mailer, that is identical to the one sent to your millions of other customers, can in no way be construed as a true copy of MY executed agreement. Furthermore, you appear to be struggling to provide the information I requested under Section 78 of the CCA 1974. I can only conclude that this is because no executed agreement exists in relation to this account. Should this prove to be the case, you will then be unable to demonstrate any compliance under Section 85. After all, how can you send a copy of something that never existed in the first place? The simple answer is that you can’t. Your default under Section 85 continues, and I enclose a further formal notification of this default.

• You consider that I am required to maintain a contractual monthly payment. This is clearly not true for two reasons. Firstly, whilst you remain in default of my Section 78 request and also Section 85, the CCA 1974 is clear that you may not enforce the agreement. This means I need not make any payment until your defaults are rectified and there is no debate on this, it is a fact of law. Secondly, you appear to be struggling to demonstrate that we actually have any contract, and therefore it follows that you cannot demonstrate that I am contractually obliged to make any minimum monthly payment.

• You indicate that you have arranged to credit a further £550 to the account, and I thank you for this. However, at the time of writing a further credit of only £50 has been applied on 1/5/2007. I trust that the further £500 is to follow. You say that this is in full and final settlement, but I am afraid I cannot agree to this. Whilst the two refunds so far amount to £930, the amount I originally asked for, you have since my letter applied a further 3 charges of £12 each on 14/3/2007, 4/4/2007 and 13/4/2007. This means that a further £36 of penalty charges remains outstanding and should be immediately refunded. There is also the not so small matter of the interest you have applied whilst in default. This is three amounts added on 12/2/2007, 14/3/2007 and 13/4/2007 totalling £339.28. This is also required to be immediately refunded.

• It is clear that whilst you persist in acting unlawfully in charging interest and applying further charges, we will never reach a point where the dispute over charges is satisfied.

To sum up, you are required to:

• Comply immediately with my request under Section 78 of the CCA 1974.
  
• Refund interest and charges as detailed above.
  
• Freeze any further interest or charges until my disputes are resolved.
  
• Rectify your Section 85 default by a) refunding all interest charged since 1/5/2001 and b) complying with my S78 request.
  
• Withdraw any threat of issuing a default notice.
  
• Withdraw any threat of legal action.

I feel it only fair to inform you that I have now involved Trading Standards in this matter. All previous and future correspondence has been supplied to them to allow them to investigate your conduct.

I await your reply.

Yours sincerely

ian1969uk

This is all getting to be quite fun!

[Guest Battleaxe]

MBNA must despair when they get these letters. None of us are accepting the Section 85 explanation from them. Just keep them on their toes.

 

You are right, it is fun.

[Cornucopia]

My latest letter to our friends at MBNA:

 

Rachel Nixon

Customer Advocate Office Manager

Alliance and Leicester Credit Card

Customer Advocate Office

Chester

CH4 9FB

 

2/5/07

 

 

Dear Ms Nixon

 

Re: Account number xxxx xxxx xxxx xxxx

 

I am receipt of your letter dated 23rd April 2007, the contents of which are noted.

 

I would like to address the points raised in your letter.

 

• You state that you have requested a copy of my credit agreement to be sent to you. I have now received what you purport to be my credit agreement, and I thank you for your assistance in this matter. However, I must point out that what you have sent me is clearly a copy of an application form, not an executed credit agreement. This is, according The Department of Trade and Industry, a further breach of the Consumer Credit Act 1974. Moreover, the document you have sent me contains absolutely none of the prescribed terms required in an agreement regulated under the Consumer Credit Act. If this document is what you are relying on as my executed agreement, then it is completely unenforceable, even in a court of law. My request under Section 78 of the CCA 1974 remains outstanding, and I will give you a further opportunity to send me a true copy of any executed agreement that exists in relation to this account. I will reiterate, whilst your default continues, you are not entitled to enforce any part of the agreement, so your actions in continuing to demand payment, add interest and charges, threaten a default and threaten legal action, are clearly unlawful and will not be tolerated.

• You raise the point that the credit card mailer you send with reissued credit card serves as a copy of the credit card agreement in respect of Section 85 of the CCA 1974. I refute this completely. A generic mailer, that is identical to the one sent to your millions of other customers, can in no way be construed as a true copy of MY executed agreement. Furthermore, you appear to be struggling to provide the information I requested under Section 78 of the CCA 1974. I can only conclude that this is because no executed agreement exists in relation to this account. Should this prove to be the case, you will then be unable to demonstrate any compliance under Section 85. After all, how can you send a copy of something that never existed in the first place? The simple answer is that you can’t. Your default under Section 85 continues, and I enclose a further formal notification of this default.

• You consider that I am required to maintain a contractual monthly payment. This is clearly not true for two reasons. Firstly, whilst you remain in default of my Section 78 request and also Section 85, the CCA 1974 is clear that you may not enforce the agreement. This means I need not make any payment until your defaults are rectified and there is no debate on this, it is a fact of law. Secondly, you appear to be struggling to demonstrate that we actually have any contract, and therefore it follows that you cannot demonstrate that I am contractually obliged to make any minimum monthly payment.

• You indicate that you have arranged to credit a further £550 to the account, and I thank you for this. However, at the time of writing a further credit of only £50 has been applied on 1/5/2007. I trust that the further £500 is to follow. You say that this is in full and final settlement, but I am afraid I cannot agree to this. Whilst the two refunds so far amount to £930, the amount I originally asked for, you have since my letter applied a further 3 charges of £12 each on 14/3/2007, 4/4/2007 and 13/4/2007. This means that a further £36 of penalty charges remains outstanding and should be immediately refunded. There is also the not so small matter of the interest you have applied whilst in default. This is three amounts added on 12/2/2007, 14/3/2007 and 13/4/2007 totalling £339.28. This is also required to be immediately refunded.

• It is clear that whilst you persist in acting unlawfully in charging interest and applying further charges, we will never reach a point where the dispute over charges is satisfied.

To sum up, you are required to:

 

• Comply immediately with my request under Section 78 of the CCA 1974.
  
• Refund interest and charges as detailed above.
  
• Freeze any further interest or charges until my disputes are resolved.
  
• Rectify your Section 85 default by a) refunding all interest charged since 1/5/2001 and b) complying with my S78 request.
  
• Withdraw any threat of issuing a default notice.
  
• Withdraw any threat of legal action.

I feel it only fair to inform you that I have now involved Trading Standards in this matter. All previous and future correspondence has been supplied to them to allow them to investigate your conduct.

 

I await your reply.

 

 

Yours sincerely

 

ian1969uk

 

 

This is all getting to be quite fun!

 

Ian, that's an excellent letter!

 

Keep in touch with developments won't you?

 

Regards,

 

Corn x:)

 

PS : Hi BA!! Catch up later x

[angry cat]

I am not saying it's right, or that they have fully complied with S78, just that a judge may decide to enforce as it contains all of the required terms and is signed by you.

 

I appreciate your opinion (all or your opinions) ian1969uk.

However, I am of the opinion that the microfiche copy does NOT contain all of the prescribed terms:-

1. Credit Limit

2. Frequency of payments.

 

Plus, I realise that any contract can be written, or by mouth but in the case of a credit agreement under The Consumer Credit Act 1974, an agreement should comply with the Act....this pathetic torn off piece of paper hardly looks like an agreement under the Act, now does it.

What is the point of having a parliamentiary Act that is supposed to protect consumers from loan sharks, when it it the big banks, who are the loan sharks and it would appear that [they] can get away with almost anything

Together with the fact, that MBNA have not fully complied!

 

The following was my response-

"Dear Mr. Theobald

 

REQUEST UNDER THE CONSUMER CREDIT ACT 1974

 

Thank you for your response to my letter dated 13 December 2006.

Unfortunately this does not fulfill your obligations under the above request for a number of reasons. I therefore must inform you that MBNA are still to comply with my original request as specified under section 78 of The Consumer Credit Act 1974.

 

There are a number of issues with the document you have provided to me, primarily (but not limited to) the fact that this is a torn of section of an application form, not an agreement, it does not have all the prescribed items present, it contains a high proportion of illegible text due to the quality of the copy and does not contain a copy of the applicable terms & conditions.

 

May I also remind you that you must supply me with a signed true and certified copy of the default that you have registered against me with the credit reference agencies.

 

I intend to issue legal action against MBNA shortly, please take note that I will petition the Court to Have the Unwarranted, Unjustified Default removed.

 

Yours sincerely

Angry Cat" ( the letter contained and additional request, for the avoidance of doubt)

 

followed by-

this letter, sent to Stephen Bailey, Stuart Johnson & S McEnvoy (Compliance)

 

"I have not been provided with a copy of the true signed executed Agreement conatining all the prescribed items as requested by me under Section 78 of The Consumer Credit Act 1974, despite my poperly formatted and paid for request dated 13 December 2006 (second request) which was received by MBNA 18 December 2006.

 

Attached is a copy letter for your information dated 10 February 2007 advising MBNA of its failure to comply with my request under Section 78 of the Consumer Credit Act 1974 dated 13 December 2006.

I have made a record of the fact that MBNA has totally ignored my above mentioned correspondence dated 10 February 2007 which is in breach of both the FSA and Banking Code guidelines.

 

TAKE NOTICE that MBNA are now in DEFAULT of Section 78 of The Consumer Credit Act 1974 that as the Default has continued for one calender month, MBNA has committed an offence under The Consumer Credit Act 1974. Note that MBNA is not entitled to enforce the alleged Agreement.

I have advised my local Trading Standards, Fair Trading Officer who will no doubt be in contact with MBNA shortly to investigate my enforcement concerns.

 

Please be advised that MBNA are also in breach of Section 85 of The Consumer Credit Act 1974.

 

I will now turn to MBNA's Unlawful processing of my personal subject data to third parties. MBNA have been formally advised by me under statutory Data Protection Notices that the alleged consent to process my personal subject data to third parties, either here in the United Kingdom, or in the United States of America, obtained under duress, has been formally 'WITHDRAWN'. Therefore any breach of my RIGHTS under section 10 & section 12 of the Data Protection Act 1998 regarding MBNA's violation of my rights will be most vigorously challenged".

 

My letter continues but mainly regarding the adverse data on my CRA file.

 

Anyhow, did I receive a reply...NO...NADA-

All is eerily silent at Chester Towers for one month now.

 

Love AC

please forgive me for any typos.

[ian1969uk]

AC, it mentions that they will notify you of the credit limit from time to time and it also states that statements will be produced monthly and the minimum payment on each statement must be made by the payment due date. These are enough to satisfy the prescribed terms imo.

 

The form of the document is irrelevant in terms of giving a judge the opportunity to enforce.

 

Section 127 states that:

 

The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

Nothing in there to specify that the document needs to have any particular format, as I said earlier if you signed ANYTHING that contains all of the prescribed terms, a judge can enforce.

[angry cat]

In this case and with the greatest of respect to you...

I do NOT agree!

 

AC

[ian1969uk]

That's fair enough, but on what point am I wrong? You haven't refuted any part of what I have posted or offered any argument on why it's wrong.

[ian1969uk]

I've looked at this a few times and to be honest this is a feeble attempt of what is meant to be an executed agreement.And there is definitly something wrong with it but at the moment I cant put my finger on it but i'll be back

 

I am not saying it's an executed agreement at all as it stands. What I am saying, and still maintain, that a judge can enforce ANY document that has all of the prescribed terms and is signed by the debtor.

[davefirewalker]

DH

 

I thought Implied terms were those terms that are implied by law, ie fit for purpose, merchantable etc.

 

Dave

[ian1969uk]

That's all for an agreement to be considered executed and enforceable. It has nothing to do with a judge's discretion to enforce an agreement, IN WHATEVER FORM, than includes all of the prescribed terms and is signed by the debtor.

[ian1969uk]

It doesn't give a definition of "implied terms" under S189 of the Act.I think A.C's piece of toilet roll revolves around S60 & S61 but then at the end of the day it would be down to the judge how he interprets the agreement as Corn said earlier if a judge has thrown out one similar then there must be some merit in it.

 

Absolutely right. Like I said, it's a judges discretion on an 'agreement' like this and he/she may choose to enforce. Likewise, they may choose not to.

 

What is certain, though, is that that agreement is not completely unenforceable, so allowing the creditor to take it to court is a risk.