Mbna - Properly Executed Agreements

[Guest Mincemeat]

I claimed back charges with interest for both my account and my hubbys account - then we CCA'd them for both accounts - guess what?

They haven't sent us anything - not a sausage so both accounts are now in default (over 42 days each) - just waiting to see if they take the DD payment for this month - then I'll be on them big time.

 

 

In my experience with MBNA, they will show their intentions on their statement. I got one where the interest was on hold! Yippee! But, they kind of fulfilled the s78 (erm, nearly I might add!) then they started charging again. Why not just cancel the DD? You can always reinstate it? The statement they send charging interest is enough to prove they haven't taken notice of the breach.

[Fred Bassett]

I would be very weary indeed of getting them to refund charges by cheque, then going after them for unenforceable agreement. Erm, 'Mr (or Mrs) Judge, I got them to pay back my charges to me by means of a cheque, then I'm claiming the agreement is unenforceable. The charges were less than the outstanding balance, but instead of mitigating the losses, I took the money and ran and then put two fingers up to them.'

 

I would suggest the 'right' approach would be to get them to refund the money back to the account, then go after them for a non-enforceable agreement. IMO the judge would laugh you out of court for attempting to have your cake and eat it. Lets not forget that MBNA do not attend court, they sell their grubby little accounts to DCA's. A DCA will attend court and they will expect their pounds of flesh. If you take this course of action, expect an unfriendly judge.

 

That's just my opinion. You need to be seen to be acting in a fair and balanced manner. Just because they are not does not mean they cannot take the high ground if they find out you are not doing the same. Pers, shame on you for incitement to commit fraud ('cos that is what they will refer to it as!)

 

Rant over, many thanks!

 

Mincemeat,

 

That's a fair point and I've haven't got anywhere near that stage yet. I still can't see how they can refund charges to an account they can't enforce though. Eventually, I guess if they can't enforce it that will be that but I need to reduce the debt in case the time ever comes when they may be able to enforce it.

 

I must admit, If I could see a legal way of giving this lot a kicking I would do it just out of revenge.

 

Regards.

 

Fred

[ladybird17]

wouldn't we all Fred

[davefirewalker]

Let them refund to the account......

 

but as the agreement is unenforceable they will have had NO right to charge interest on it.

 

Claim all the interest back

 

Dave

[InKogneeToh]

I would be very weary indeed of getting them to refund charges by cheque, then going after them for unenforceable agreement. Erm, 'Mr (or Mrs) Judge, I got them to pay back my charges to me by means of a cheque, then I'm claiming the agreement is unenforceable. The charges were less than the outstanding balance, but instead of mitigating the losses, I took the money and ran and then put two fingers up to them.'

 

I would suggest the 'right' approach would be to get them to refund the money back to the account, then go after them for a non-enforceable agreement. IMO the judge would laugh you out of court for attempting to have your cake and eat it. Lets not forget that MBNA do not attend court, they sell their grubby little accounts to DCA's. A DCA will attend court and they will expect their pounds of flesh. If you take this course of action, expect an unfriendly judge.

 

That's just my opinion. You need to be seen to be acting in a fair and balanced manner. Just because they are not does not mean they cannot take the high ground if they find out you are not doing the same. Pers, shame on you for incitement to commit fraud ('cos that is what they will refer to it as!)

 

Rant over, many thanks!

 

Hi MIncemeat

 

Sorry, but I am going to disagree with you here.

 

Just because a creditor is barred from enforcing an agreement because of a failure to comply with the CCA does not mean that a debtor may not still reclaim any unlawful penalty charges applied to the account. These are a totally separate issue from the enforceability of the agreement.

 

Since it is the creditor's own default that has caused the agreement to be unenforceable (if indeed it is!) I don't see how mitigation of loss comes into it.

 

A debtor may still demand performance of an agreement that is unenforceable, even though he does not have to pay for it.

 

In Wilson v Secretary of State for Trade & Industry (HL), Lord Nicholls says this:

 

31. These restrictions on enforcement of a regulated agreement are for the protection of borrowers. They do not deprive a regulated agreement of all legal effect. They do not render a regulated agreement void. A regulated agreement is enforceable by the debtor against the creditor. It seems, for instance, that a borrower may insist on making further drawdowns under a regulated agreement even though the agreement is unenforceable against him.

 

So it would appear that if a debtor still has a credit balance on a credit card, for example, he would be entitled to continue to spend that money even though he would have no obligation to repay it!!

 

Regards, Pam

[Fred Bassett]

Let them refund to the account......

 

but as the agreement is unenforceable they will have had NO right to charge interest on it.

 

Claim all the interest back

 

Dave

 

Now that idea I like. I've had this account since 1997 and I kept it in good order until about 18 months ago. The interest + the charges/fees + contractual interest on all of that lot could well amount to more than the outstanding balance, but I'd have to go back more than 6 years. I know this has been done with Lloyds, but has anyone done it with MBNA yet?

 

Fred

[ladybird17]

Can you really imagine MBNA knowing what went on 6 years ago - blimey they don't even know what's going on today!

[InKogneeToh]

Now that idea I like. I've had this account since 1997 and I kept it in good order until about 18 months ago. The interest + the charges/fees + contractual interest on all of that lot could well amount to more than the outstanding balance, but I'd have to go back more than 6 years. I know this has been done with Lloyds, but has anyone done it with MBNA yet?

 

Fred

 

Hi

 

I'm afraid there is no precedent or case law that supports the supposition that you can claim back any monies already paid, so a claim for the refund of interest would be a shot in the dark!

 

If an agreement is unenforceable, the creditor would not be entitled to use your money (unlawful penalty charges) to off-set against an account that he could no longer enforce.

 

If it is unenforceable, you have no legal obligation to pay, so why would you donate back to the creditor, money that he had unlawfully taken from you in the first place.

 

If you are certain that the agreement IS unenforceable, you should insist that the creditor refunds your money to you by cheque.

 

Regards, Pam

[davefirewalker]

And then if it was unenforceable it was also more than likely improperly executed in the first place....

 

if the agreement was improperly executed the they are not alowed to profit from it

 

therefore they are not allowed to charge interest

 

then you can claim it back

 

or have I got this backwards again

 

Dave

[InKogneeToh]

 

if the agreement was improperly executed the they are not alowed to profit from it

 

therefore they are not allowed to charge interest

 

then you can claim it back

 

 

Hi Dave

 

This argument that a creditor may not profit from an unenforceable agreement and that this means you can claim back monies already paid is no more than a theory at the moment I'm afraid. It has not been tested in court and there is no relevant case law that specifically supports this assumption. That's not to say that such a claim would be unsuccessful - but who's going to go first?!

 

I certainly would not advise relying on this assumption as a way of reclaiming monies if a debtor had allowed a creditor to off-set the refund of any unlawful penalty charges against any future (unenforceable) liability of the debtor.

 

A debtor can still pay an unenforceable debt if he wants to and a creditor is perfectly entitled to keep any payments made voluntarily.

 

Regards, Pam

[davefirewalker]

Well i'm in the process with amex and morgan stanley

 

will let you know how I get on

 

 

Dave

[dpick]

Hi Dave

 

This argument that a creditor may not profit from an unenforceable agreement and that this means you can claim back monies already paid is no more than a theory at the moment I'm afraid. It has not been tested in court and there is no relevant case law that specifically supports this assumption. That's not to say that such a claim would be unsuccessful - but who's going to go first?!

 

I certainly would not advise relying on this assumption as a way of reclaiming monies if a debtor had allowed a creditor to off-set the refund of any unlawful penalty charges against any future (unenforceable) liability of the debtor.

 

A debtor can still pay an unenforceable debt if he wants to and a creditor is perfectly entitled to keep any payments made voluntarily.

 

Regards, Pam

 

Hi just doing a bit of brain picking the following is response I have received re my MBNA and Capital one CCA requests.

 

Cap1 sent me an my original application form

MBNA sent a very unclear copy of my original Bank of Scotland agreement

 

This is response I got from financial adviser:

 

With regards to MBNA and Capital One it appears that the agreements are unenforceable as they have been improperly executed. They do not contain the prescribed terms set out in the Consumer Credit Act namely, The agreements do not state the credit limit, the rate of interest, details of any power to vary the agreement or debtors repayment obligations. Although this is difficult to determine when referring to the MBNA agreement as it is impossible to read. I would advise that you write to both stating you believe the agreement is improperly executed, and as a consequence is irredeemably unenforceable (See Wilson v First County Trust CA).

If I force the issue of the agreement being "irredeemably unenforceable" would I still be able to claim back unlawful charges as these payments would not have been made voluntarily.The full truth being I want to give MBNA as much hassle as I possibly can after the way they have treated me and my better half.

dpick:D

[jalex_uk]

Bump

[Fred Bassett]

dpick,

 

If you feel like starting a "I want to give MBNA as much hassle as I possibly can" club then stick me down for founder membership.

 

I'll be watching this one with a lot of interest as I too have an axe to grind with this shower.

 

They are going to get hammered over this business of improperly executed agreements and I for one am loving every minute of it. Honestly, there's been a renewed spring in my step lately at the thought of getting some payback. So good luck, I'm sure everybody on this board is behind you.

 

Regards.

 

Fred.

[wednesday1867]

How we all doing?

 

Just after a little clarity to some noobie questions

 

Like i said on my thread, i sent the cca 30 April and it was received 1st May, so their time is nearly up.

 

My questions are about the course of action, do i stop paying them after the 12 =2 days for the original request or when they have committed the criminal offence?

 

Also if they dont or cant supply, what can i claim for, is it the charges and all interest paid?

 

 

Thanks

[ladybird17]

If they can't supply the debt becomes unenforceable

[wednesday1867]

If they can't supply the debt becomes unenforceable

 

 

Yeah i gather that , but is that after the initial 12 days or after the 42 and what if anything, can i then claim?

[ladybird17]

the debt becomes unenforceable after the initial 12 working (+2) days. They then have a further one calendar month before an offence is committed. However, if they come up wth it after this, it becomes enforceable. The only sanctions are those that may be imposed by TS of ICO if you complain to them - and it appears that both these bodies do not see the need to prosecute for non-compliance.

 

IMHO I would sweat out the whole time-scale. By alerting them after 12 days that they haven't complied, means they may well rush around and locate an agreement (if there is one) and thus satisfy calendar month rule.

[Guest Mincemeat]

Still reading...

[ladybird17]

Just thought I would drop in here to let you all know that during a lengthy and slightly heated call with MBNA this morning, regarding the validity of the alleged "copy of executed agreement" (pertinent to my CCA request under S78 of CCA), after much blustering from their end, I was told that I had been sent a copy of a Credit Card Mailer, which, according to the young lady on the phone, satisfies S78.

 

Well, well, does it indeed??

[SteveH2508]

Just thought I would drop in here to let you all know that during a lengthy and slightly heated call with MBNA this morning, regarding the validity of the alleged "copy of executed agreement" (pertinent to my CCA request under S78 of CCA), after much blustering from their end, I was told that I had been sent a copy of a Credit Card Mailer, which, according to the young lady on the phone, satisfies S78.

 

Well, well, does it indeed??

 

Well I will lay a substantial bet that they have not provided the financial details required by sub-sections a), b) and c) of sub-section 1! So sorry MBNA but no cigar!

[Guest Battleaxe]

Oh yes, but will it satisfy Section 85? We all know the answer to that one

[Guest Mincemeat]

I'm still awaiting a response from dear WW regards his b******t inferrence that a copy of my application / agreement can be executed by rubber stamping a system dump page 7 days before they decided they would send me an application form...... pathetic really. Oh, LB who was the discussion with when they attempted to state that a mailer satisfies s78?

[Fred Bassett]

Yeah i gather that , but is that after the initial 12 days or after the 42 and what if anything, can i then claim?

 

I think this is an interesting point. Personally, I'm thinking along the lines of going through the SAR route to see if I can claim back unlawful charges etc. If the deb is unenforceable then that's their problem, just as long as they don't try to refund charges to an unenforceable debt.

 

I'm still not sure of this, but there is at least some opinion on this thread that seems to imply that this is perfectly doable.

 

Regards.

 

Fred

[ladybird17]

hi minncey,

it was with my "account manager" - I have the name.