Cap1 & CCA return

[means2anend]

Is this a proper agreement opinions please

 

http://i991.photobucket.com/albums/af33/theprofessor_album/Applicationformpage1edited.jpg

 

http://i991.photobucket.com/albums/af33/theprofessor_album/Applicationformpage2edited.jpg

 

No Agreement!!!

[MAGDA]

Case Law though does entertain..

 

One possible way to approach this would be to invoke the discussions that took place in Carey (or was it MgGuffick) between Counsel for the Banks and the Judge that included observations made by Lordships in Burchell v Thompson.

 

Counsel for Banks were suggesting that omissions that did not involve prescribed terms and that were NOT authorised by Regulation to be omitted could be omitted.

 

Here there was an issue as to whether A document that did contain all prescribed terms yet failed to contain other information could still be held to be unenforceable..

 

...Low level omissions such spelling mistakes and blank spaces could not mislead the reader of the document as a whole when read.

 

Speeches in Burchell v Thompson made a distinction between Low Level and High Level Omissions

 

High level ommissions (not including prescribed terms) NOT authorised by The Act or Copies of Documents and Cancellation Notices Regulations 1983 may affect the document as a whole when read by the debtor and could mislead so as to distort what was meant by the agreement and what was actually written thereby affecting the reader's understanding.

 

In Common Law the maxim for this is ''non est factum'' Not my document.

 

What the reader signed for at the time later transpires not to be what s/he understood it in fact to be at time of signing.

 

This is case law.......The question you have to ask is whether the information that was in fact missing at the time your friend signed the agreement, when reading the document as a whole actually led him/her to a different conclusion than would have been the case HAD the information been there.

 

So can the information that is missing and misrepresented in the above post in your third agreement be labelled as so...ARGUABLE!!!

 

I would say that to represent the loan amount as the actual loan AND the COST of that Loan is a misrepresentation as this goes to the very heart as to what the cost of that borrowing was....

 

Default charges...Your friend was mislead into thinking that there were no Default charges being applied to this account.This may also have been done on purpose in order for their ''product'' to stand out more favourably competition wise which in itself would breach other legislation..and there here is a causal link between the missing of that term and influencing your friend's decision to contract with them.

 

A NOTICE in the Statement of Form and Protection of Remedies concerning her RIGHTS was also missing. Here there was no advice as to whom s/he could turn to in the event that problems should arise..i.e ''EXPERIENCED PERSONS''...trading standards,cab...

 

Unless your reader was an experienced banker,lawyer,debt or financial advisor I should argue that your friend may indeed have been misled as to the agreement.

 

A ''reasonable consumer'' does not in my opinion nor is expected possess the experience skills and knowledge that the above people possess to reduce the chance of being misled.Your friend's background will have as much part to play as an external factor that would influence any Judge/Court.

 

In view of the above factors..I would say that then those were indeed High Level Ommissions

 

m2ae

 

Thanks for your continued help m2ae, that gives me another angle to look at this from and is really helpful.

 

Enjoy the Easter weeekend! Magda

[MAGDA]

Hi, I wonder if someone can help with this. We are being taken to court for an ex MBNA credit card which was assigned (as is the norm) to Cabot. The 'application' that Cabot has provided is for an upgrade to a Gold Account. However, just been speaking to MBNA and they told me that we actually had a platinum account and they would have required paperwork to be completed for this - they don't just upgrade automatically. It seems therefore that this would have been a modifying agreement (think that's the correct term:confused:) and this is the account that would have been assigned, not the Gold account. Does this make any difference in terms of what documentation Cabot need to provide to pursue their claim? Or would they need to provide the original, regardless of what account was held at the time of default. I believe Carey v HSBC stated that if the terms of the agreement had been amended at any point (which in this case they would have been by changing the card to a platinum one) then the agreement provided would need to be an actual copy of the original, not a reconstructed one? Also, does anyone know if these old MBNA agreements had the t&cs included as part of the agreement, from what I remember it would have been an application only (mailer type thing) and t&cs entirely separate, if at all.

 

 

Many thanks, Any help really appreciated, Magda

Edited April 8, 2010 by MAGDA
added extra text

[lookinforinfo]

Sorry to change tack on this thread but I am trying to confirm if the T&Cs sent to under S.77 are the ones that would have been in force in January 2006.

They state that the penalty for missing a loan payment was £15 and the charge for sending a DN was £50.

 

Can anyone please give me an answer to this-I have a case3 coming up and need all the ammo I can get.

[Chalkitup]

Hi, I wonder if someone can help with this. We are being taken to court for an ex MBNA credit card which was assigned (as is the norm) to Cabot. The 'application' that Cabot has provided is for an upgrade to a Gold Account. However, just been speaking to MBNA and they told me that we actually had a platinum account and they would have required paperwork to be completed for this - they don't just upgrade automatically. It seems therefore that this would have been a modifying agreement (think that's the correct term:confused:) and this is the account that would have been assigned, not the Gold account. Does this make any difference in terms of what documentation Cabot need to provide to pursue their claim? Or would they need to provide the original, regardless of what account was held at the time of default. I believe Carey v HSBC stated that if the terms of the agreement had been amended at any point (which in this case they would have been by changing the card to a platinum one) then the agreement provided would need to be an actual copy of the original, not a reconstructed one? Also, does anyone know if these old MBNA agreements had the t&cs included as part of the agreement, from what I remember it would have been an application only (mailer type thing) and t&cs entirely separate, if at all.

 

 

Many thanks, Any help really appreciated, Magda

 

 

Hello Magda,

 

The same is happening with me .... MBNA keep sending an old account application to me and not the Platinum one that I signed when I upgraded.

And I did sign one on upgrade ......I keep copies of everything and have done since the year dot!!!!!!! Best of all I have statements and letters from some creditors actually saying that the old "standard, gold etc" accounts will be closed when I upgrade and the "completely" new Platinum etc account will be opened. So MBNA are sending me an old application (instead of the Platinum one) for an account that years later they put in writing that they have closed and has a zero balance and is no more!!! This has been going on for three years and I eagerly await my day in court but alas they never seem to humour me .... just pass it around the DCA's.

 

Years ago MBNA loved the mailer type thingy!! They use to add a few chosen terms on the back ..... not prescribed usually and the application was normally smaller than A4.

 

There is a good thread that citizenb put together showing loads of MBNA agreements / applications ... I believe in the CAG library.

 

Onwards and Upwards

 

Chalkitup

[MAGDA]

Hello Magda,

 

The same is happening with me .... MBNA keep sending an old account application to me and not the Platinum one that I signed when I upgraded.

And I did sign one on upgrade ......I keep copies of everything and have done since the year dot!!!!!!! Best of all I have statements and letters from some creditors actually saying that the old "standard, gold etc" accounts will be closed when I upgrade and the "completely" new Platinum etc account will be opened. So MBNA are sending me an old application (instead of the Platinum one) for an account that years later they put in writing that they have closed and has a zero balance and is no more!!! This has been going on for three years and I eagerly await my day in court but alas they never seem to humour me .... just pass it around the DCA's.

 

Years ago MBNA loved the mailer type thingy!! They use to add a few chosen terms on the back ..... not prescribed usually and the application was normally smaller than A4.

 

There is a good thread that citizenb put together showing loads of MBNA agreements / applications ... I believe in the CAG library.

 

Onwards and Upwards

 

Chalkitup

 

Hi CIU, Many thanks for your reply. I hadn't realised I had the wrong 'application' form at first because I'd forgotten we had a platinum account - it was so long ago now, but when I was speaking to MBNA (in a very general way, just to pump them for information in a round about way;)) they mentioned that we had a platinum account, so I now realise that must be the account that was assigned. I actually found the old cards then, stuck in a drawer somewhere and it definitely was a platinum account! It sounds exactly like your own case doesn't it.

 

It seems that MBNA proabably scanned in the original application, or microfiched it, or whatever they do, and not the subsequent ones, or else I'm sure Cabot would have provided that as well.

 

The woman on the phone confirmed what you say, that an application is filled in to upgrade, they don't just do it automatically.

 

Morgans, Cabots solicitors, are claiming that the t&cs provided at that time contained the prescribed terms, but from what you say, that seems unlikely and also the t&cs they've provided to date have £12 penalty charges which speaks volumes....

 

Many thanks again for your help and will have a look at the thread CB put together.

 

Good luck with your battles!

 

Magda

Edited April 8, 2010 by MAGDA

[MAGDA]

Can anyone please give me an answer to this-I have a case3 coming up and need all the ammo I can get.

 

Hi Lookinforinfo, Hopefully someone will correct me if I'm wrong, but I think the OFT issued guidance on the charges that they shouldn't be any more than £12 around April 2006, so the t&c's you mention could possibly be relevant for Jan 2006.

 

Hopefully someone else will add to this. Which lender is this for - perhaps if you could post them up, someone with the same account might know a bit more.

 

regards, Magda

[lookinforinfo]

Thanks for that Magda, but I think that was for charges relating to credit cards rather than loans.

[Kate987123]

Hi everyone,

 

Just posting regarding PCB query from last week about debt collection agencies not fulfilling a CCA request and persisting in contacting you or passing the debt on. I've been looking at the same issue and found this is in the template library which may be of use to you:

 

http://www.consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/579-letter-when-dca-refuses-to-comply-with-a-cca-request

 

I'm new to all this myself so maybe someone more experienced can help you further or confirm this would be the correct letter to send them.

 

Hope it helps!

[MAGDA]

Thanks for that Magda, but I think that was for charges relating to credit cards rather than loans.

 

Hi, sorry lookinforinfo, assumed it was a credit card, but can see looking at your post again that you said it was a loan.

 

Hope you find out what you need to know.

 

Magda

[Bigdebtor]

Magda

 

MBNA have a habit of changing the 16 digit card account numbers. It might be worth checking if they actually refer to to the same account number that is on the cards you have - and on which you presumably "spent the money"? If the number has changed then also check old statements to see when they last used the correct number - as if it's approaching or over 6 years then the balance may not be reclaimable through being time barred? Do a SAR request if necessary to get old statements and confirmation of changes to account numbers etc.

 

Hope this helps

 

BD

[maxedout]

Hi Bigdebtor. what do you mean by MBNA (2) 2007 35% short settlement £7000. Did they accept 35% of the balance or did you pay the balance minus 35%,and what is short settlement. Thanks Maxedout.

.

[MAGDA]

Magda

 

MBNA have a habit of changing the 16 digit card account numbers. It might be worth checking if they actually refer to to the same account number that is on the cards you have - and on which you presumably "spent the money"? If the number has changed then also check old statements to see when they last used the correct number - as if it's approaching or over 6 years then the balance may not be reclaimable through being time barred? Do a SAR request if necessary to get old statements and confirmation of changes to account numbers etc.

 

Hope this helps

 

BD

 

Hi BD, Cabot has provided statements back as far as 2002, but up until Feb 2003 it shows the MBNA account number as being different to the MBNA account no. in March 2003 onwards. The credit card no. itself isn't mentioned - these are just A4 copies of statements. I seem to remember Mbna give you an account No. don't they, as well as the credit card no. itself - which is a 10 digit no. On the t&cs provided by mbna/Cabot (complete with £12 penalty charges) a credit card No. has been written across the top, but it isn't the number that was on our latest cards. To add to this, on one of the statements they have written a second credit card number, but again, this isn't the correct number. The application they have provided which they claim is the agreement, is an upgrade to a Gold Card, and the box requesting a Silver card has been ticked. At some point, the account was obviously changed to a Platinum one as I seem to remember we had a Silver card to start with. Chalkitup mentioned that you need to complete an application to upgrade, which was also confirmed by MBNA on the phone. Maybe this will all give me extra leverage to beat Cabot with:)

 

Many thanks for your help BD, Regards, Magda

[pt2537]

credit tokens expire, therefore it would be beneficial imho to find out, if this was a replacement card, as defined within s85 or was this a new agreement with a new credit token and the balance was transfered.

 

May be able to use part 18 to seek clarification

[MAGDA]

credit tokens expire, therefore it would be beneficial imho to find out, if this was a replacement card, as defined within s85 or was this a new agreement with a new credit token and the balance was transfered.

 

May be able to use part 18 to seek clarification

 

Hi, As far as I know, the old account number was changed and also the Credit card number itself, so it seems it might have been a completely new account when it was upgraded to the Platinum card, and the balance on the Silver/Gold card transferred over and of course, the t&cs and prescribed terms would be different to the original ones. From what I have been able to find out, it seems a new application is filled out when you upgrade as Chalkitup remembers doing this.

 

the part 18 request to find out for certain seems like a very good idea.

 

Many thanks PT, magda

[pt2537]

trouble is you cant rely upon chalkitups recollections so hard facts will be needed if the court is to consider this as a triable issue

[MAGDA]

trouble is you cant rely upon chalkitups recollections so hard facts will be needed if the court is to consider this as a triable issue

 

 

No, you're right of course, and the fact that MBNA told me on the phone that they don't just automatically upgrade, again, would not mean much in court would it, unfortunately.

 

Will have to see if I can come up with something a bit more conclusive (hard facts, as you say) but it's something else that might prove useful perhaps.

 

Cheers, Magda

[diddydicky]

trouble is you cant rely upon chalkitups recollections so hard facts will be needed if the court is to consider this as a triable issue

 

apologies for the interrupt but would you take a look at the decision in this thread as i think it needs appealing

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/223267-poc-sent-restons-hfc-post2870300.html#post2870300

[pt2537]

your written evidence carries a tad more weight than someone elses statements etc

 

however, i would not post the options on here so as to avoid them the chance of realising who you are and what your tactics are etc

[MAGDA]

ok, thanks pt,

 

magda

[Bigdebtor]

Hi Bigdebtor. what do you mean by MBNA (2) 2007 35% short settlement £7000. Did they accept 35% of the balance or did you pay the balance minus 35%,and what is short settlement. Thanks Maxedout.

.

 

I paid £7k which was 35% of the balance - so got a 65% discount of around £14k on the 2 MBNA cards I had. Short settlement is exactly what it sounds like - they settle for an amount short of what is due - i.e. for a % of the actual balance.

 

However the mistakes I made then - pre CAG - was to settle as they offered without negotiating further, testing if they actually had an enforceable CCA - and, if I found they had, not deducting unfair charges and interest first before agreeing to 35% of the remaining balance. I suspect I could have saved this entire £11k along with the £4.5k to A&L (also part of MBNA by then) - OK I would have had a few minths of grief from DCA's - but not £15.5k worth.

 

BD

[Bigdebtor]

Hi, As far as I know, the old account number was changed and also the Credit card number itself, so it seems it might have been a completely new account when it was upgraded to the Platinum card, and the balance on the Silver/Gold card transferred over and of course, the t&cs and prescribed terms would be different to the original ones. From what I have been able to find out, it seems a new application is filled out when you upgrade as Chalkitup remembers doing this.

 

the part 18 request to find out for certain seems like a very good idea.

 

Many thanks PT, magda

 

Magda

 

From what you say, I think it's extremely unlikey they will have a water-tight paperwork trail capable of enforcing payment on the debt against teh current card or account no. As well as following PT's advice (as always!) I think it's worth seeing how far away from 6 years you are from your last payment against the ORIGINAL card and account number - since this might soon become SB - and they may well have an enforceable agreement for this - more likely than for the new account no and card no.

 

BDe

[pt2537]

hmm,

 

doubt it

 

I see no enforceable agreement, and lets not forget Carey v HSBC said that a reconstruction of the agreement is NOT for proof of properly executed agreement

 

the burden is on them to prove

[lookinforinfo]

[quote=pt2537;2870671

 

I see no enforceable agreement, and lets not forget Carey v HSBC said that a reconstruction of the agreement is NOT for proof of properly executed agreement

 

the burden is on them to prove

Sorry PT where did Justice Waksman say that? I have read the transcript several times and that statement does not ring any bells.

I do remember reading him say that creditors could take borrowers to Court on the strength of a reconstituted agreement and that the creditor should be able to prove that an agreement had been signed...........

[pt2537]

Sorry PT where did Justice Waksman say that? I have read the transcript several times and that statement does not ring any bells.

I do remember reading him say that creditors could take borrowers to Court on the strength of a reconstituted agreement and that the creditor should be able to prove that an agreement had been signed...........

yes he did, in the five day transcript and also in the judgment, he made clear that s78 was not for proof purposes, he said that numerous occasions through the main judgment.

 

also i would read the opening paragraph

 

This judgment deals with two matters concerning requests for copies of credit card agreements pursuant to section 78 of the Consumer Credit Act 1974 (“the Act”) and the consequences of non-compliance with that provision. The first matter is the determination of six preliminary issues of law, arising in a number of selected cases. The second is the application by two of the Defendant banks to strike out or to obtain under CPR 24 the summary dismissal of certain claims brought against them on the basis of no reasonable grounds and/or abuse of process and/or no real prospect of success (“the Applications”).

 

 

Any comments about suing on a reconstruction are dicta at best and dont really need considering as each case must be tried on its merits