Unenforceable CCA agreement.

[howardb]

Hi Guys, I've done a CRA on MBNA for a £3500 debt that's been outstanding for a couple of years now, that they have kept a default on my CRA but are being very coy about actually chasing.

 

I suspect the CCA (If you can call it that, it looks like an application form to me) is not correctly formed, and thus unenforceable. Could someone validate that for me? (CCA Attached).

 

Also, assuming it's unenforceable, how do I force MBNA to take it off credit reference agencies (CRA's)?

 

thx in advance

Edited March 4, 2013 by howardb

[dpick]

Hi jpg is to small to read if it contains all the prescribed terms it would probably be accepted by a court as an agreement.

 

At this time MBNA can mark the CRA files as a default as this reflects the account at this time, the account would be removed when default is 6 years old or account statute barred.

 

dpick

[howardb]

Yeah the attachment upload system on CAG seems to convert it from hi definintion to tiny blurred jpg. Anyway, I can tell you for a fact that interest rate and credit limit is not on the signed portion of page (ie front page), so thats at least two prescribed terms missing, although there is an alleged back page aswell from what I read that doesnt count.

[renegadeimp]

Scan the cca as a pdf.

 

Also when was the loan taken out. when was the last time you made payment. When was the last time you acknowledged it in writing (cca request doesnt count).

[howardb]

ok will do, the 'Application' was signed late 1996, last payment was about 2010 (I stopped paying when they lowered my limit and doubled my initerest rate without telling me!). Although they tried to get me to admit the debt on the phone I did not, I SAR'd them in 2010 and also raised a complaint with the financial Ombudsman when they failed to produce CCA initially. They eventually provided full SAR late 2010 and have been VERY quiet since. I would let sleeping dogs lie, but the default on my CRA just cost me a new contract/job with a bank (For which I had been accepted), so is getting VERY costly.

Edited March 4, 2013 by howardb
Attachment added

[renegadeimp]

The cca must comply with specific requirements. Mainly they need a copy of the original plus terms t&cs of it at inception and now.

[BRIGADIER2JCS]

Hi Guys, I've done a CRA on MBNA for a £3500 debt that's been outstanding for a couple of years now, that they have kept a default on my CRA but are being very coy about actually chasing.

 

I suspect the CCA (If you can call it that, it looks like an application form to me) is not correctly formed, and thus unenforceable. Could someone validate that for me? (CCA Attached).

 

 

 

 

 

 

Also, assuming it's unenforceable, how do I force MBNA to take it off credit reference agencies (CRA's)?

 

thx in advance

 

 

Hi, just taken a look through your thread, the ''form'' is one og MBNAs dual purpose app/agreement forms the often used on things like postal promotions, and I can see that there is a stamp an annotaions on the form so it would seem to me that it is more than likely compliant with section 77/78 CCA '74., but I would like to see all of the form.

 

As to removing the default entry from CRA files, the creditor is still entitled to report the account on a regular basis, as unenforceable means only that the agreement cannot be enforced in court, the debt still exisits and can be pursude by all normal collection processes short of court action.

 

The account is pre April 2007 so a compliant copy of the original would be needed in court.

[fletch70]

There is no need to state the credit limit but there must be something about how it is decided. Is that all they sent you,what about T&Cs and a signed statement of account.

 

From what i can see it is UE but don't take my word for it.

[fletch70]

Oh even if it's UE you will not get it removed until it falls off after 6 years

[howardb]

Brigadier, thx attached is the 'reverse' photo copy I was provided with in the SAR though I have no proof it really was the reverse of the front page I signed. It seems as a 'general' form, there should have been plenty of other CAG'ers that have encountered it's enforcability or not.

 

I also read somewhere that the ICO had issued guidelines stating that debts should not be reported to CRA's under cerain circumstances, one of which was where the debtor has disputed the debt and the creditor has been unwilling to enforce it in court (ie because they know it's unenforcable.), thats where i'm trying to get to, make it an ICO issue.

[fletch70]

Have a Google of ico guidelines on defaults. I don't think you have a leg to stand on.

[BRIGADIER2JCS]

Brigadier, thx attached is the 'reverse' photo copy I was provided with in the SAR though I have no proof it really was the reverse of the front page I signed. It seems as a 'general' form, there should have been plenty of other CAG'ers that have encountered it's enforcability or not.

 

I also read somewhere that the ICO had issued guidelines stating that debts should not be reported to CRA's under cerain circumstances, one of which was where the debtor has disputed the debt and the creditor has been unwilling to enforce it in court (ie because they know it's unenforcable.), thats where i'm trying to get to, make it an ICO issue.

 

Hi Howard,

 

That's defo a dual purpose form, I have one here from a case similar to yours, I would be hard pushed to state categorically that is or is not unen, bit if a creditor supplies evidence of useage and payments to the account then it would be up to a judge to decide.

[howardb]

Fletch that link doesnt take me to anything related?

 

Brigadier (Are you really an ex Brigadie btw? )ok, well given their reticence to take ANY action on it, i'm going to work on assumption they know it's unenforcable, and use that as starting point to withdraw their right to process my information. I might just be poking a hornets nest, but I don't want to wait another three years for this to drop off my CRA reports.

[fletch70]

Sorry that was not supposed to be a link. The site auto linked it. What i was saying is Google ico guidelines on.

 

Hope that helps.

[howardb]

Ah ok, based on the issued guidlines I think they will fall foul of section 44 "If the dispute has not been before a court, is the lender prepared to test their claim by seeking a CCJ or decree against the customer? If not, why not?"

[howardb]

My memory sucks, just being going through the old correspondence on this, IGNORE EVERYTHING ABOVE, I just remembered they failed the timescale requirement on a section 78 request I did, so the debt is automatically unenforcable. So now it's direct route to ICO pressure to remove default. This is the letter I sent back in 2009:

 

Head of Customer Assistance

MBNA Europe Bank Limited

Stansfield House

Chester Business Park

Chester

CH4 9QQ

 

25th September 2009

 

Dear Sir/Madam

DEFAULT NOTICE IN ACCORDANCE WITH CONSUMER CREDIT ACT 1974 78 (6)

 

ACCOUNT NUMBER: xxxxxxxxxxxx

I do not acknowledge ANY debt to your company. You have now failed to supply me with a copy of the signed executed agreement for the alleged “debt” you are trying to enforce. This request was sent on 9th September 2009 by recorded delivery. The Consumer Credit Act allows 12 working days for this request to be carried out before your company enters into a default situation. The time limits expired on 25th September 2009.

 

For your information the relevant section of the Consumer Credit Act states the following:

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than

implied term.

Additionally:

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(6) 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.

As you are aware, a credit agreement that is not properly documented and signed by the consumer is totally unenforceable under the Consumer Credit Act 1974 and therefore is a complete defense to any court claim that is issued.

 

 

 

 

 

I will therefore no longer be making payments against the alleged debt as it is unenforceable. I now consider the matter closed and no further correspondence regarding payment will be entered into. If you persist on pursuing payment you will have left me no choice but to report this matter to such regulatory bodies as I see fit.

 

 

 

Yours Faithfully,

[howardb]

You may also be amused to know they finally sent me a BLANK copy of the CCA dated 25th March 2011, so they only missed their 12 day deadline by about 400 days!!

[howardb]

Following the above letter, they put my account into default, which got me a bit angry:

 

Head of Customer Assistance

MBNA Europe Bank Limited

Stansfield House

Chester Business Park

Chester

CH4 9QQ

 

28th October 2009

ACCOUNT NUMBER: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

Dear Sir/Madam,

 

Thank you for your letter dated 22nd October 2009, received 26th October 2009, the contents of which are noted.

 

I am somewhat perplexed as to why you are sending me letters about ‘default notification’ as you have failed to comply with any of my requests for information which in turn has put this account into serious dispute.

 

I would like to draw your attention to the following so as not to be in any doubt about your company’s lack of compliance with my LEGAL request.

 

On 14th September 2009 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. On the 29th September 2009 I wrote again highlighting your failure to supply a true signed agreement within the legal timeframe required under consumer credit Act 1974 s77/8 (All correspondence has been by recorded delivery).

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law.

 

Furthermore you should be aware that a creditor is NOT permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

 

 

· May not demand any payment on the account, nor am I obliged to offer any payment to you.

 

· May not add further interest or any charges to the account.

 

· May not pass the account to a third party.

 

· May not register any information in respect of the account with any credit reference agency.

 

· May not issue a default notice related to the account.

 

 

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines.

 

It is my intention to report your actions to any such regulatory authorities as I see fit, including (but not limited to) The Office of Fair Trading, and the Trading Standards.

 

You have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I look forward to your final decision on this complaint within 21 days. This should include your proposed actions in relation to the lack of a credit agreement.

Sincerely

[BRIGADIER2JCS]

Typical, MBNA are clutching at straws, accounts sold that are not viable and have not been so for years.