MBNA CCA received, please help.

[Rayn2036]

Another debt for this poor debt ridden chap. Please advise if this is enforceable.

 

DCA- Link Financial

OC- MBNA - Credit card applied back in 2001

DMP- Eurodebt, been paying token payment since late 2002, will be ditching them soon.

SAR sent to MBNA and waiting.

[dx100uk]

might be your signed application form

but those T&C's are from post 2006

when the OFT/FCA ruled that they would not investigate BANK charges above £12

 

for 2001 the T&C's should show PENALTY fees were £20 or £25

 

so they've sent you T&C's from a later date and not the originals from 2001

that they must send

 

unlucky plink

 

try again.

 

dx

[Rayn2036]

Thanks DX, can they enforce if they cannot produce T&Cs at inception/default?

[dx100uk]

no.

 

a cca request must contain the original T&C's and any with later changes.

[fletch70]

I can't download it for some reason but I think I did look at it. It was an application form is that right?

The T&C's were not the ones from inception as DX pointed out they said £12 for missed payments etc.

 

Three options

Ignore until they send anything then write back with one of the letters

Send a non compliance with S78 letter

Send an application form received letter...might have posted this already

Dear Sirs

Account No: XXXXXXXX

On XX/XX/XXXX I wrote requesting a true copy of the executed credit agreement for the above account. In response to this request I was supplied an application form, a copy of which is attached, which did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974). I would like a copy of the actual agreement. I appreciate that as per Carey v HSBC, a reconstituted agreement can be provided, however I am disputing the actual existence of such an original which means the Carey case is irrelevant as without one the account would still be deemed unenforceable. Carey only went to prove that if you could not provide an original, for whatever reason, but had proof on your systems/records that certain conditions were in place at that time then a recon could be submitted only in-so-far as to satisfy your s.78 request. If you do not have an original then a recon cannot be produced.

The document you sent, purporting to be a credit agreement, does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974, plus you did send an application form. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say, all of the required terms are not present in this document. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:

127(3) 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).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In MBNA v McCullagh; the judge ruled;

"The terms and conditions are plainly not a copy of those on the original agreement. There may only be one difference identified (it is difficult to tell from the illegible copy of the original) but that is enough. The obligation is to provide "a copy of the executed agreement". This plainly cannot be a copy of the original agreement. It is not open to the claimant to say that the difference is 'de minimis'. They have to provide a copy of the original (reconstituted or otherwise)"

The OFT Guidance clearly states that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

• hiding or disguising the fact that there was never a proper signed agreement in the first place

• providing only a copy of the current terms and conditions, not the original ones

Similarly, in line with recent OFT Guidance surrounding Unenforceability, I presume you're aware that the OFT has stipulated the following;

Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

• a copy of their agreement

• copies of some of the other documents mentioned in their agreement

• a statement of account

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

• make the debtor pay the debt before they're supposed to

• get a court judgment against the debtor

This account is unenforceable until you comply with my original request and send a copy of the original document, if it exists. If it does not, then you have to confirm this fact in line with your licensing guidance, as detailed above.

Yours faithfully,

 

Sign using a computer font

[Rayn2036]

UPDATE:

 

received SAR from MBNA,

 

there are several Late payment and over limit charge at £20.

 

What I have also noticed is they have added PPI even though my application is not ticked to accept PPI.

 

This debt is sold to LINK,

 

can I claim PPI from MBNA?

 

I guess I have to go to court to claim late payment and over limit charge which I do no want to do yet.

 

If I have a successfull PPI claim, will this get deducted from my outstanding debt?

Appreciate your help.

[dx100uk]

good news then

 

the PPI will goto YOUR POCKET

 

they have sold the debt.

 

This first spreadsheet is the latest version of the statutory interest calculator and is used for Single Premium PPI cases. It can also be used where rollover PPI is involved, i.e. a new loan re-financing a previous one and where PPI is included in one or more loans. It can also be used for S69 redress calculation on any sum, like on a closed/frozen interest PENALTY charges claim.

 

StatIntSheet v101.xls

 

This second spreadsheet is a compound interest calculator and can be used both for PPI claims and Charges Reclaims on Revolving Credit Accounts such as credit cards. Compound interest is not an award that fos will give in respect of PPI claims but it can be used in PPI cases that are pursued through the courts. It is the standard sheet that is also used for charges reclaims both on credit cards and loan accounts where interest in restitution is claimed.

 

CISheet v101.xls

 

 

last spreadsheet first

end the claim at the date they stopped charging interest.

 

link 3 below

[dx100uk]

then put the total from the CISHEET into the statint sheet on the date

ckaim to date

 

that will give you the 8% you are entitled too

[Rayn2036]

Thanks DX, I worked it out but I am not sure about the date insertion. Can you please have a quick look and let me know if this is correct? 07/05/2003 is the last interest charged date on the statement and it was frozen after this date.

[dx100uk]

yep looks great

can see then arguing on such a small sum either

 

dx

[Rayn2036]

Received once again the same paperwork that was previously sent, Nothing new. Page 2 seems to be the the agreement from inception however majority of the text are missing. Page two must be from back of the application form as you can see shadow of the stamp from application form.

[angry cat]

Typical Link Financial...!

 

irredeemably unenforceable CCA; yet another Lemon.

[Rayn2036]

Thanks angry Cat, can you please let me know why you think its UE? so I know what to write them when they chase me for money which I am sure they will do in the coming days.

[dx100uk]

as post 2 the charges are the wrong level.

 

pes i'd not bother reporting to link at this stage

 

get the claims in.

 

dx

[angry cat]

Agree, don't bother as communicating with them is pointless; Link Financial know the score...!