Mbna - Properly Executed Agreements

[davefirewalker]

ok main....go for it (with my blessing )

 

rhia i do understand... but I dont like telling someone to chance their arm on a maybe, if i'm not !00% sure I tend to err on the side of caution. (usually, sometimes ,on the whole, maybe) politicianspeak

 

Dave

[Rhia]

rhia i do understand... but I dont like telling someone to chance their arm on a maybe, if i'm not !00% sure I tend to err on the side of caution. (usually, sometimes ,on the whole, maybe) politicianspeak

 

 

 

 

Let's be honest Dave none of us know which way the judiciary are going to jump. We hear (most) cases where common sense prevails and the judge is fair and sees through the various ploys by banks and DCAs. But sometimes, just sometimes unfair things do happen so you are wise to be more circumspect.

I have just become much more confrontational since starting along this road and I really believe that we should take the battle to them. But as you say, I might be wrong. At the end of the day it's for each individual to weigh up their own odds.

[davefirewalker]

Ok then just come up with something that "might" help my case.

 

on the copy agreement they have sent me their sig date is a day before mine.

 

so that would mean that it become executed when I signed it !

 

this changes the agreement!!

 

"Unless the agreement becomes executed when the customer signs it, a second copy must also be sent by post to him within seven days of the making of the agreement. Where a second copy is not required because the agreement becomes executed when the customer signs it, the trader must send by post a separate notice of cancellation rights to the customer within seven days of the making of the agreement."

 

I do have a copy agreement with cancellaton rights on it , but they didnt comply by sending me seperate cancellation rights.

 

 

The separate notice of cancellation rights – to be sent in cases where a second copy of the agreement does not have to be sent to the customer – must be on a single sheet of paper and in the form appropriate to the type of agreement as set out in Appendix 5. If the notice is entirely on one side of the paper, the cancellation form must also be on that side. If the notice is continued overleaf that must be indicated by the word ‘/over’ appearing on the front of the sheet after the end of the incomplete text.

 

Also

 

"If any of the rules is not followed, an agreement will be ‘improperly executed’ and may

be unenforceable. "

 

One more thought...is a photocopy acceptable as an original document. I have seen time when I have had to send original documents for id as photocoies wont do.

 

the reason I ask is i dont beleive they have the doc and may only have a microfiche copy!

 

And finally the last bit of straw clutching

 

cancellable agreements regs

 

"The APR which must be denoted as ‘annual percentage rate of the total charge for credit’, ‘APR’ or ‘annual percentage rate’. The only case in which the APR need not be shown is in a fixed-sum agreement for credit to be spent on specified goods or services where the total amount payable is the same as the total cash price (that is, there are no credit charges). In that case there must be a statement indicating this."

 

notice the word MUST.......and the use of UPPER and lower case

 

well my agreement says ANNUAL PERCENTAGE RATE

 

???

 

Any opinions

 

Dave

[tomterm8]

well my agreement says ANNUAL PERCENTAGE RATE

 

???

 

Any opinions

 

Dave

 

My opinion is that a court would accept this as adequate.

[tomterm8]

I am no longer welcome on CAG

[Cornucopia]

not arguing...just playfull discusion

 

 

night night

 

dave

 

DAVE I AM MORTIFIED!!!! Just catching up with thread and my post sounded really horrid!!! I am SO SORRY! It wasn't, meant to at all, but it does read like that!

 

I know you weren't arguing!! I am surprised you didn't email me and tell me off!!!

 

I put it down to my very unhealthy relationship with Pint O'Grig!!

 

Have a hug from me:p

 

Corn xx:)

[davefirewalker]

no probs corn...you were tired, besides it would take more than that

 

Dave

[Cornucopia]

no probs corn...you were tired, besides it would take more than that

 

Dave

 

I was tired but that was no excuse!!!! I have never been rude to anybody on the threads (apart from pornographic rudeness which is perfectly acceptable if you ask me!), I really was just typing away with wild abandon!

 

Hope all forgiven xxxxxx

[Jaranius]

xx

[Cornucopia]

sorry was supposed to be a PM

 

Bloody hell! Was about to tell you that should have been in a PM!

 

:o

[InKogneeToh]

Ok then just come up with something that "might" help my case.

 

on the copy agreement they have sent me their sig date is a day before mine.

 

so that would mean that it become executed when I signed it !

 

this changes the agreement!!

 

"Unless the agreement becomes executed when the customer signs it, a second copy must also be sent by post to him within seven days of the making of the agreement. Where a second copy is not required because the agreement becomes executed when the customer signs it, the trader must send by post a separate notice of cancellation rights to the customer within seven days of the making of the agreement."

 

I do have a copy agreement with cancellaton rights on it , but they didnt comply by sending me seperate cancellation rights.

 

 

The separate notice of cancellation rights – to be sent in cases where a second copy of the agreement does not have to be sent to the customer – must be on a single sheet of paper and in the form appropriate to the type of agreement as set out in Appendix 5. If the notice is entirely on one side of the paper, the cancellation form must also be on that side. If the notice is continued overleaf that must be indicated by the word ‘/over’ appearing on the front of the sheet after the end of the incomplete text.

 

Also

 

"If any of the rules is not followed, an agreement will be ‘improperly executed’ and may

be unenforceable. "

 

One more thought...is a photocopy acceptable as an original document. I have seen time when I have had to send original documents for id as photocoies wont do.

 

the reason I ask is i dont beleive they have the doc and may only have a microfiche copy!

 

And finally the last bit of straw clutching

 

cancellable agreements regs

 

"The APR which must be denoted as ‘annual percentage rate of the total charge for credit’, ‘APR’ or ‘annual percentage rate’. The only case in which the APR need not be shown is in a fixed-sum agreement for credit to be spent on specified goods or services where the total amount payable is the same as the total cash price (that is, there are no credit charges). In that case there must be a statement indicating this."

 

notice the word MUST.......and the use of UPPER and lower case

 

well my agreement says ANNUAL PERCENTAGE RATE

 

???

 

Any opinions

 

Dave

 

Hi

 

In reverse order, my opinions:

 

1) I don't think it is crucial that 'Annual Percentage Rate' is written on your agreement in upper case. The regs. don't specify what case must be used, only that all important terms/info must be prominent and easy to read.

 

2) For the purposes of the CCA s77/78 requests I think a photocopy is acceptable. However, in a court claim the debtor should insist on seeing the original document.

 

3) If you are ABSOLUTELY CERTAIN that your agreement was executed in circumstances where the separate copy of cancellation rights/cancellation notice should have been sent BUT wasn't, then it would be totally unenforceable under s127(4) CCA.

 

If you are sure of your facts then write and challenge the creditor on this issue and see whether they can provide any proof that this document was sent within the prescribed time limit after you signed the agreement.

 

Regards, Pam

[therafalution]

Not sure where i stand with this one, i have a piece of paper that says it is credit agreement regulated by the cca 1974. It gives details of of the loan and what will be paid and when. What it doesn't have is any signatures or room for them.

[davefirewalker]

is this a copy that they have sent you? or is this yours

 

if they have sent you this in response to a cca request then they think it is sufficient and according to the cca1974 that is all they have to send you.

 

HOWEVER for them to chase the debt they NEED the original copy signed by both. I would write back and demand a true copy of the EXECUTED agreement

 

this is the original document with the terms of aggreement and yours and theirs signatures.

 

Dave

[therafalution]

Thanks Dave, no this is mine, i have sent them a CCA this morning. What i have does not contain any signatures.

[joneshousehold]

Two points Dave

 

On the question of whether a copy from microfiche is acceptable, I thought I read somewhere that microfiche copies are allowed in court providing an officer of the company certifies it as a genuine copy. (Is it part of CPR or some regulation covering court procedings perhaps?) Of course what we have to do is find a way of questioning that certificate. I have one where the agreement is about A5 size but the T&Cs are A3. I was thinking of arguing that there was a real questionmark on whether the statement is tenable and I may even reduce the T&Cs down to the right size to see if it proves my point.

 

On the point about dates and when the agreement became executed I have pondered this myself a few times. I think I am inclined to agree that if the date shown by the creditors signature is before that of the debtor then it should be considered to be executed on signature by the debtor. It is then a case of asking the creditor to prove what was sent by way of copies and at what stage. I suspect that most creditors whilst they may be able to tell you what they do, cannot actually prove it by showing documentary evidence of other records such as a note of what was sent. They may have to send a witness to give verbal evidence of procedures but how this would stand up if the debtor gave verbal evidence that copies were not received I do not know. What I am not sure about is whether the courts would go along with this however. But the Act is quite specific about what should be sent and when and in the light of this it is not unreasonable to expect a creditor to at least keep a record of what they did so they can prove it should the need arise. That is what should be emphasised to the court I believe. This argument works whichever way the agreement became executed, it just means a different set of documents were required to be sent at different times. I really think most creditors have not kept at least a record of what was sent, let alone copies.

 

Thoughts anyone?

 

(Hey this my 1000th posting!)

[davefirewalker]

Hi jones

 

It is my opinion that they have only sent the copy as if it became executed later. I do NOT remember recieving seperate cancellation rights, although I do have a copy agreement.

 

I think they have ba**sed up on this one.

 

I'm going to do a full sar on them, and let them know I want a full one.

 

lets see what turns up !!

 

Dave

[dpick]

Hi all referring back to MBNA having agreements on microfiche has anyone received a clear copy of their agreement, the copy they sent me was photocopy/screen dump on A4 but the actual image was on about 2/3 of the size of the A4 sheet and of course was not legible. The thing I am thinking about is can MBNA actually produce a clear copy of an agreement if required.

 

I must make it clear now that as a person who now lives in a council disabled persons bungalow and lives on pension and benefits I am out to give MBNA as much "you no what" as they have given me in the past. What can they do to me, they cannot put a charge on my home I don't own one and I am already paying my agreed maximum under debt management program and I don't have to answer the phone if I don't want to.

 

As I have said above I have received one of their copies of agreement that is not legible but even I can see no APR, no payment details, no credit limit and the terms and conditions sent with this were MBNA terms not the Bank of Scotland terms when I got original card before sellout to MBNA

 

Also got their usual response to SAR "We have not treated this as full subject access request etc" so am now preparing none compliance letters for CCA and SAR.

 

I would be happy for anyone to give me some ideas how to cause more problems for MBNA, who to report them to for CCA and SAR none compliance, I am prepared to go to small claims court over these and even if by some mischance a judge did say I had to pay their costs HOW I am on benefits I suppose I could pay another $1 a week.

 

And could someone in the no tell me just how clear these microfiche copies can be.

 

dpick:p

[tomterm8]

I am no longer welcome on CAG

[camuser]

Sorry to sound dumb but is a credit card CCA request section 77

Duty to give information to debtor under fixed-sum credit agreement

 

or 78

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

 

or both

[SteveH2508]

Sorry to sound dumb but is a credit card CCA request section 77

Duty to give information to debtor under fixed-sum credit agreement

 

or 78

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

 

or both

 

 

A credit card (or credit token under the Act) is running-account credit so you would use Section 78.

 

HTH

[camuser]

I recived my CCA request today ( day 12 )

They sent me a photo copy of application form from 1999

bottom right hand corner has my sig inside a box titled reg. by CCA 1974 and sig makes me legally binded. Rest of photo copy unreadable as for T&C.

 

Don't know what next move to be any suggestions. I was looking section 77a and 78a and thinking that they have not supplied this info.

[dpick]

Sorry to sound dumb but is a credit card CCA request section 77

Duty to give information to debtor under fixed-sum credit agreement

 

or 78

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

 

or both

 

 

Hi its s78 but I just used "S77-78" in CCA request as a cover all, for both MBNA and Crapital one both sent their example of a credit agreement.

1,an unreadable copy of agreement from microfiche

2,a copy of my application form

 

but at least I got a reply from both now abaout to issue none compliance letters to both.

 

good luck dpick:-D

[ss_collins]

I know the 'pescribed period' is 12 days + 1 month but does anyone know where this is stated in the law?

[Perseus]

Hi SS

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft020.pdf

 

If you look at page 26 - it clearly states (by the OFT about giving information during the lifetime of an agreement)-

 

The trader must provide in all other cases copies of the executed agreement (if

any) and of any other document referred to in it. In the case of a request from a

surety, a copy of the security instrument (if any) must be provided in addition.

The statement of information by the trader must:

be signed by or on behalf of the trader

show the information listed below, and

be given within 12 working days after receiving a request.

Hope this helps

Perseus

[Perseus]

I recived my CCA request today ( day 12 )

They sent me a photo copy of application form from 1999

bottom right hand corner has my sig inside a box titled reg. by CCA 1974 and sig makes me legally binded. Rest of photo copy unreadable as for T&C.

 

Don't know what next move to be any suggestions. I was looking section 77a and 78a and thinking that they have not supplied this info.

 

Any chance you can scan and post your 'agreement' here camuser?

 

Pers