Cap1 & CCA return

[monopoly23]

Thanks Peter. These will will getting sent in the morning

[Peterbard]

HI Sorry just read the rest of your letter

Yes they are in default after 12 days so they should not take any action to enforce the account after that.

The bit about the credit liscence is fine although i might say the regulator may question your ability to hold a credit license rather than you yourself.

 

Best regards

Peter

[gill5blue]

Hi All,

Here is the response from MBNA for my credit agreement

What is the legal bit, is it unenforcable?

Gill

[gill5blue]

and here is the response from CITI for the CCA

[davefirewalker]

No. 1 It seems to have a complete lack of prescribed terms......

 

I think that they would have a hard time with that one

 

No.2 they are basically right...but they need the original (signed by both) to enforce any action...but here is a letter from the oft that might clarify things

 

.....................

 

Thank you for your email received on 31 March about your enquiry into the Consumer Credit Act Sect 77 & 78.I apologise for the delayed response.

 

The general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. 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). However, 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.

 

If you would like to make a formal complaint. Please fill in the attached complaint form.

 

Thank you again for writing to us.

 

Yours sincerely

 

 

Olu Ademolu

Enquires and Preliminary Investigations Centre

Markets and Projects

 

................................

 

Also this reg 3 (which they are refering to) and reg 7

 

not the full regs but relevant parts

General requirements as to form and content of copy documents

 

reg 3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

 

(2) There may be omitted from any such copy- any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy; any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section of the Act applies); in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and in the case of any copy given to the debtor under section 77(1) of the Act of an executed agreement for fixed-sum credit under which a person takes any article in pawn, any description of the article taken in pawn.

 

Copies of agreements or security instruments where the agreement or security instrument has been varied

 

reg 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 a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either- 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 an easily legible statement of the terms of the agreement as varied in accordance with section 82( 1) of the Act.

 

(2) Where a security provided in relation to a regulated agreement has been varied, every copy of the security instrument relating to it given to a debtor, hirer or surety under any provision of the Act shall include either-an easily legible copy of any document varying the security; or an easily legible statement of the terms of the security as varied.

 

sorry for all the legal stuff..but you need to know it

 

 

rgds

 

Dave

[harrythehawk]

Hi, just in from CIS for an old Northern Rock credit card, it is headed application and agreement and the signiature box says this is an agreement ....... is it what they need to satisfy CCA request ?

 

http://i72.photobucket.com/albums/i187/harrythehawk/app1Medium.jpg

 

Comments and views please people of CAG !!

[davefirewalker]

OK it needs to be bigger!

 

but again I cant see any prescibed terms on that doc, and it also says "Application" which I suppose is a dead giveaway

 

I would say its an application, and you cant enforce an application

 

rgds

 

dave

[gill5blue]

Hi

Thanks dave

are you referring to MBNA or CITI( THE mbna is above the post for CITI)

Gill

[out of cash]

so is this correct a cca agreement can leave out sigs,sig boxes and dates of sigs as citi cards are saying i cant believe this if this is the case they can knock up any old thing using any good software text program etc:o

 

regards

 

out of cash

[davefirewalker]

Hi

Thanks dave

are you referring to MBNA or CITI( THE mbna is above the post for CITI)

Gill

 

The post above this one was a reply to harrythe hawk (7997)

 

My reply to you was numbered

 

1 was in response to mbna

 

2 was in response to citicards attempt at refusal

[dpick]

so is this correct a cca agreement can leave out sigs,sig boxes and dates of sigs as citi cards are saying i cant believe this if this is the case they can knock up any old thing using any good software text program etc:o

 

regards

 

out of cash

 

don't matter what they say they still have to produce the real agreement in court.

 

dpick:)

[davefirewalker]

so is this correct a cca agreement can leave out sigs,sig boxes and dates of sigs as citi cards are saying i cant believe this if this is the case they can knock up any old thing using any good software text program etc:o

 

regards

 

out of cash

 

BUT they would need the signed original to enforce any action

 

Dave

[Josie8]

so is this correct a cca agreement can leave out sigs,sig boxes and dates of sigs as citi cards are saying i cant believe this if this is the case they can knock up any old thing using any good software text program etc:o

 

regards

 

out of cash

 

Under a s.78 request they are allowed to omit the signatures and names but it still has to be a true copy of the original executed agreement. It is the OFT's interpretation that says they can provide a blank copy - the actual regulation still says a true copy. In reality if they have a true copy they are usually more than happy to send you a copy of original complete with sigs - or even send you copies of your application (see above MBNA example). It is always suspicious when they produce something different.

[angry cat]

Hi Guy's

 

As you are no doubt aware, I have been in 'Dispute' with MBNA for some time now over matters various!

Plus the fact that MBNA are in Default under S78 CCA 1974, they have been provided with a Default notice advising them of that fact.

 

Recently, I have been sent 2 letters from MBNA:

 

1. Letter from Steve Bailey (Customer Advocates) dated July 3rd "We are currently investigating your complaint and we will provide you with a full response by July 24th".

 

2. Letter from Mathew McGrath (Customer Assistance) dated July 4th

"Your outstanding balance due under the above account has been sold to Link Financial. All enquiries regarding this account, including balance

information, together with future payments, should be made directly to this

company".

 

How on earth can MBNA sell an account that is in Dispute to a DCA? An account that has an unenforceable agreement

 

Any ideas on how I should respond to letter number 2, or should I just ignore it. Obviously, I will not be making any contact with Link Financial

[davey77]

Morning AG. They do that to everyone! Sounds like you are one step behind me. I CCA'd MBNA mid April and they wrote mid May to say they would be selling the debt even though they had supplied nothing towards the CCA at that point. Writing to them say the account was in dispute (failure to supply CCA, unenforceable etc) made no difference. They sold both debts anyway. My first instinct was to ignore Link Financial too but i decided to CCA them recently (and had a mis-informed letter in reply, on my thread). I figure i should exhaust every avenue that way when i report all this to the FOS i can show i have tried everything possible.

[dpick]

Hi Guy's

 

As you are no doubt aware, I have been in 'Dispute' with MBNA for some time now over matters various!

Plus the fact that MBNA are in Default under S78 CCA 1974, they have been provided with a Default notice advising them of that fact.

 

Recently, I have been sent 2 letters from MBNA:

 

1. Letter from Steve Bailey (Customer Advocates) dated July 3rd "We are currently investigating your complaint and we will provide you with a full response by July 24th".

 

2. Letter from Mathew McGrath (Customer Assistance) dated July 4th

"Your outstanding balance due under the above account has been sold to Link Financial. All enquiries regarding this account, including balance

information, together with future payments, should be made directly to this

company".

 

How on earth can MBNA sell an account that is in Dispute to a DCA? An account that has an unenforceable agreement

 

Any ideas on how I should respond to letter number 2, or should I just ignore it. Obviously, I will not be making any contact with Link Financial

 

hi AC you could try this letter/ email to both of these I have been informed by other members they are MBNA corporate solicitors

 

[email protected]

[email protected]

 

 

I sent both e-mail with copy of letter I have sent re harrassment and acount in dispute plus file that was a copy of last call I had from them demanding money. I have now not heard a thing for 8 days from 4 calls a day.

 

member of the get back at MBNA club

 

all are wellcome to join the crusade

 

all the best dpick:D

[davey77]

Isn't Michael Rhodes the Chairman of MBNA?

[dpick]

Isn't Michael Rhodes the Chairman of MBNA?

 

Hi I think with MBNA it depends what they are signing and if he is Chairman then all the better for us to keep sending to him, I know he wont see it but it should go to someone that knows what they are doing not just a button pusher for computer letters

 

dpick:p

[harrythehawk]

Thanks Dave, it is what I thought, I hve a new scanner which is driving me mad and will have to resort to the instruction manual to scan things larger !! Really though, we are dealing with a very large amount of cash on this account so I am more scared of what I am doing with this one, my previous CCA argument was won with a catalogue for a couple of hundred quid !! CIS are slippery characters, they didn't cash my cheque for this and sent it back, also this thing they sent back was with a compliments slip and no letter ..... as they are well over the 44 days in providing it is this a deliberate ploy ?? I have built up a bitter distrust of them so is my judgement of this response wrong do you think ?

[davefirewalker]

Thanks Dave, it is what I thought, I hve a new scanner which is driving me mad and will have to resort to the instruction manual to scan things larger !! Really though, we are dealing with a very large amount of cash on this account so I am more scared of what I am doing with this one, my previous CCA argument was won with a catalogue for a couple of hundred quid !! CIS are slippery characters, they didn't cash my cheque for this and sent it back, also this thing they sent back was with a compliments slip and no letter ..... as they are well over the 44 days in providing it is this a deliberate ploy ?? I have built up a bitter distrust of them so is my judgement of this response wrong do you think ?

 

Write them something along the lines of

 

I refer to my letters dated XXXXXXXX which was delivered via recorded delivery to your offices on XXXXXXXX, and my follow up letter dated XXXXXXXX.

 

In my letter xxxxxxI made a formal request for a copy of the signed, executed credit agreement for the above numbered XXXXXXXX account under section 77(1) and section 78(1) of the Consumer Credit Act. In addition a statement of my account should have been sent along with any other document mentioned in the credit agreement.

 

Despite my properly formatted legal request for information, enclosing the correct payment, you have not actioned this as you should. you have been paid, and whether you choose to bank the cash or not is your concern. The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, Your company commit an offence. These time limits expired on XXXXXXXX and XXXXXXXX respectively.

 

As you are no doubt aware subsection (6) states:

 

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.

 

Therefore as at XXXXXXXX this account became unenforceable at law and it is now my intention to refer this matter to the enforcement authorities.

 

Any default notices or adverse comments your company have recorded on my credit reference file should be immediately removed.

 

Failure to respond favourably to this letter within seven (7) days of receipt will result in immediate litigation being commenced against your company without further notice.

 

I await your rapid response.

 

.................

 

Dont take any ***** from these idiots, state yor case firmly and most importantly if you threaten anything be sure to carry it through, or else they'll walk all over you

 

rgds

 

Dave

[harrythehawk]

What an excellent letter DFW !! Many, many thanks !!

[angry cat]

Thanks davey & dpick,

But I have already sent MBNA this letter with copies to steve Bailey etc

 

 

"June 24, 2007

 

Ms. Rachel Claridge

Assistant Vice President

MBNA (Europe) Bank Limited

Customer Advocates Office

Chester Business Park

Chester

CH4 9FB

 

Dear Ms. Claridge,

 

Account XXXX XXXX XXXX XXXX

 

Thank you for your multiple responses to my letter dated 29 March 2007, which was factually addressed to Mr. Stuart Johnson (another Assistant Vice President of MBNA (Europe) Bank Limited) with copies to Mr. Stephen Bailey and S McEnvoy. Frankly, I find it extremely worrying and discourteous that none of the aforementioned MBNA employees could be bothered to acknowledge the most serious content of my letter.

 

I do not know what you are attempting to achieve by your multiple communications:-

 

• 1. 18/05/07. An undated letter but the envelope bore the Chester Royal Mail Franking date 18/05/07, in which you stated “Thank you for contacting us. Your subject access request has been passed to me to respond to. We have provided this information to you free of charge on this occasion”. Attached to the letter was a set of ledger statements for the above mentioned account number dated from 03/01/2001 through 31/08/06. Trans. amounts in $US Dollars with the alleged charge off adjustment also quoted in $US Dollars.

 

I do not know what you are talking about? As I did not make a subject access request to MBNA under Section 7 of The Data Protection Act 1998. Please supply me with proof of my alleged “Subject Access Request”. As you are no doubt aware, there are certain rules that a Data Controller has to comply with, prior to sending out a data subjects’, ‘subject access request’. If you are in doubt, this information is available for you on the Information Commissioners website.

 

• 2. 22/05/07. Two days later a further set of ledger statements for the same account dated from 03/01/2001 through 31/08/06. However, the Trans. Amounts are in £ sterling, ‘British Pounds’. The alleged charge off adjustment has now been altered to £ Sterling ‘British Pounds.

 

• 3. 21/05/07. Your third latter, “Thank you for your recent letter. I note your reference to Section 85 of the Consumer Credit Act 1974 and would like to address your concerns. The copy of the credit agreement which you receive with your credit card actually serves as your copy of that credit agreement for the purposes of Section 85 of the Consumer Credit Act 1974. This is sent to you in the form of a “credit card mailer” and comprises a credit card which is physically attached to the copy of your agreement. You may note that this copy of your credit agreement does not include a signature by or on behalf of MBNA. The signature has been deliberately omitted, as MBNA is permitted by law to serve you a copy of the credit agreement without including the signatures and certain other specified information. This does not affect the validity of the credit agreement or the copy we have served you”.

 

Once again Ms. Claridge, I do not know what you are talking about? You have not sent me a “credit card mailer”.

 

You appear to be referring to ‘The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, (“the Regulations”). Regulation 3 states that subject to the following provisions every copy shall be a ‘true copy’. It then goes on to set out what may be omitted from a copy. Section 3(2) (a) states that any signature box, signature or date of signature” (apart from in a copy agreement sent under 63(1) of the Act) may be omitted. In every other sense the copy must be a ‘true copy’. Apart from the things that the Regulations say can be omitted from the copy, the copy must be a “true” copy of the executed agreement. To be an executed agreement, it would have had to be signed originally and contain all the terms of the agreement. All the Regulations allow is some things to be omitted from copies, not from the original executed agreement which still have to comply with Section 61 of the Act.

In the case of a dispute the lender would need to produce the original, ‘true’’, signed, executed agreement in order to be able to enforce it.

 

I will now turn to the fourth paragraph of your letter:-

 

“Please be aware that we will not be removing the default from your credit file. The information we supply to the Credit Reference Agencies must be factual; the fact that you have failed to maintain contractual payments resulted in your account defaulting, it was not due to the application of fees”.

 

The Data Protection Act 1998, (the “Act”).

 

Take Notice, that you (MBNA (Europe Bank Limited) have been served with formal ‘Notices’ under Section 10, Section 12 of The Data Protection Act 1998, (“the Act”) to cease, desist from unlawfully processing my personal subject data to third parties, together with the fact that I have formally withdrawn my alleged consent from MBNA (Europe) Bank Limited, which is my right under that same Act, to process my personal subject data. You are processing data about me which is ‘not true’ it is unjustified, unwarranted and defamatory. Together with the fact: that you continue to process my subject data whilst, I am in dispute with MBNA (Europe Bank Limited and MBNA (Europe) Bank Limited is in Default under Section 78 of The Consumer Credit Act 1974.

 

• You may not demand any payment, on this account, nor am I obliged to offer any payment to you.

 

• You may not add any further interest or charges to this account

 

• You may not pass this account to a third party.

 

• You may not register any information in respect of this account with any of the credit reference agencies

 

• You may not issue a default notice related to this account.

 

You (MBNA (Europe) Bank Limited are in breach of The Data Protection Act 1998.

 

The last paragraph of your confused letter to me states "If we do not hear from you within eight weeks of the date of this letter, (21 May 2007) we will assume that the matter is closed”. You (MBNA (Europe) Bank Limited can assume whatever, you wish! However the matter is clearly not closed as MBNA (Europe) Bank Limited is in Default of Section 78 of The Consumer Credit Act 1974, the (“Act”).

 

I enclose a formal Default Notice, for your information.

 

Yours sincerely,

 

Angry Cat".

 

Note, you may not pass this account to a third party!!!

 

However, even though I have reported them to TS, sent them a formal CCA Default notice and sent the above letter to ALL the MBNA hierarchy.

 

The response that I have received is that the account has been sold to Link???

Whats that, a get out of jail quick.

 

Nothing that MBNA gets up to surprises me now, but I am somewhat shocked at their cavalier attitude regarding CCA legislation plus their 'Unfair Business Practices' which are an utter scandal and I believe calls into question MBNA's fitness to hold a consumer credit licence!

 

Love AC

[out of cash]

hi josie8,

 

i still cant see how they can enforce a cca agreement which hasnt been signed by them or the debtor as what would be the legal binding of the contract i have so far recieved 5 applications with all sigs terms and conditions even the box this is a cca 1974 agreement crap but the bottom line is massive heading in caps CREDIT CARD APPLICATION there is lots of messing around going on with creating conjectured documents i dont know what the sec 78 bit is about as the cca 1974 request covers sec

(Sections 77-79), i think? if no sigs are on a true copy of a said agreement then surely there was never an agreement signed no doubt someone will say i have this wrong again:D

 

regards

 

out of cash

[yaffsimone1]

hi josie8,

 

i still cant see how they can enforce a cca agreement which hasnt been signed by them or the debtor as what would be the legal binding of the contract It has to be signed by both parties for it be enforcable in court i have so far recieved 5 applications with all sigs terms and conditions even the box this is a cca 1974 agreement crap but the bottom line is massive heading in caps CREDIT CARD APPLICATION There is some disscussion about whether an application hybrid agreement can be passed off as an agreement...at the end of the day if it is properly executed with all the prescibed terms it does not really matter they have put in the words application. there is lots of messing around going on with creating conjectured documents i dont know what the sec 78 bit is about as the cca 1974 request covers sec (Sections 77-79) The CCA request should only cover the section your alleged account relates to i.e S.77 is fixed sum, S.78 is running account and S.79 is hire purchase, your dispute will relate to only one of these you should not request under all three., i think? if no sigs are on a true copy of a said agreement then surely there was never an agreement signed no doubt someone will say i have this wrong again:D If there are no signatures by the debtor or creditor it is improperly executed

 

regards

 

out of cash

 

 

Yaff

[davefirewalker]

posted by yaffsimone1

 

"If there are no signatures by the debtor or creditor it is improperly executed"

 

If there are no signatures by the debtor or creditor it is Irredeemably unenforceable, and most probably void. If it has never been signed then it doesnt exist.

 

however a copy can leave out the sigs and other non relevant info

 

Dave