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SSC vs MBNA (agreements)


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Ok so I finally get round to sorting this out...

 

I've downloaded this letter and today it goes spec de to MBNA.

 

http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html#post162367

 

So heres the relevant parts of the CCA at least from the point of view of this letter. I've deleted bits that are not that relevant and emphasised the most relevant bits. 79 is really not that relevant as I read it as MBNA credit cards are covered in 77 & 78. I'm now not clear on where the £1 part comes in - anyone?

 

77.—(1) The creditor under a regulated agreement for fixed sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence, 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 total sum paid under the agreement by the debtor;

 

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due: and

 

© the total sum which is to became payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (l)©, 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.

 

 

(4) 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; and (b) if the default continues for one month he commits an offence.

 

 

78.—(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 15 new pence, 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 (l) ©, 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.

 

(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 content (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; and (b) if the default continues for one month he commits an offence.

 

79.—(1) The owner under a regulated consumer hire agreement, within the prescribed period after receiving a request in writing to that effect from the hirer and payment of a fee of 15 new pence, shall give to the hirer a copy of the executed agreement and of any other document referred to in it, together with a statement signed by or on behalf of the owner showing, according to the information to which it is practicable for him to refer, the total sum which has become payable under the agreement by the hirer but

remains unpaid and the various amounts comprised in that total sum, with the date when each became due.

 

 

(3) If the owner under an agreement fails to comply with subsection (1)~

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

(4) This section does not apply to a non-commercial agreement.

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Your item with reference ZVxxxxxxxxGB was delivered from our CHESTER Delivery Office on 24/04/07 .

Thank you for using this service.

We can confirm that this item was delivered before the guaranteed time.

And so it begins. Now can anyone tell me where the wording of the pescribed period can be found.

 

The credit or under a regulated agreement for fixed sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of 15 new pence, 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

 

So what is the exact wording of the pescribed period and where can it be found?

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It seems I had an older version of the CCA 1974, beware of the variants as there have been amendments and updates a couple of times. Also make sure you have the right version for you as it depends when your agreement started what applies and what does not.

 

The amended versions contain a number of changes but the only relevant one now is the £1 charge to get the agreement.

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So still nothing heard from MBNA not even a peep. So I'll take a look at the law

 

78.--(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,--

 

What is the pescribed period? well I've been pointed in the direction of a document from the office of fair trading (OFT) entitled "Matters arising during the lifetime of an agreement - Consumer Credit Act 1974" this was produced in March 2005

 

The relevant section (Duty to give information) states

2) Duty to provide information during the lifetime of an agreement at the

request of a customer or surety

 

A customer (or surety if a different person from the customer) has, during the lifetime of an agreement (whether fixed-sum credit, running-account credit or hire), the right, to request from the trader concerned: a copies of certain documents, and b a statement of certain information. Any such request from a customer or surety must be in writing and accompanied

by the appropriate fee of £1.

In the case of a request from a customer for a copy of a security instrument, it is sufficient for the trader to supply the copy. No further information need begiven. 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.

 

So its 12 working days from MBNA receiving the request. RM confirm that it was delivered on the 24th April. This gives them until 10th May. This time next week.

 

The same document contains the following

 

If the trader fails to comply with a request from a customer or surety within one month from the end of the 12 days, he commits an offence. Until he does comply with the request, he is not entitled to enforce the agreement.

 

Which is similar to that stated in S.78 of the CCA

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yes well....

 

Anyway this is the 'agreement' MBNA have sent me...

 

First observations - this is the application form done at Luton Airport, not an agreement - this is the only document I ever signed (by the way the initialling on the form does not look like my writing, but the sig definatley was).

 

So that aside lets look at the relevant laws and documents relating to a 'properly executed agreement'

 

From the OFT publication mentioned earlier

 

S61(1) provides that a regulated agreement (other than one falling within

the s74 exemptions, see Q1.2) is not properly executed unless:

• a document in the prescribed form, containing all the prescribed

terms of the agreement and conforming to regulations under

s60(1), is signed in the prescribed manner by the debtor and by or

on behalf of the creditor;

• the document embodies all the terms of the agreement, other than

implied terms; and

• the document is, when presented or sent to the debtor for

signature, in such a state that all its terms are readily legible.

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Hmm not as easy as I thought this bit. What I need is the Consumer Credit (Agreements) Regulations.

 

However the OFT give some guidance on this

 

What the agreement must contain

1 A heading in one of the following forms of words shown prominently on the first

page:

Hire-Purchase Agreement regulated by the Consumer Credit Act 1974

or

Conditional Sale Agreement regulated by the Consumer Credit Act 1974

or, in any other case,

Credit Agreement regulated by the Consumer Credit Act 1974.

Where the document embodies an agreement, of which at least one part is a credit

agreement not regulated by the Act, the word ‘partly’ must be inserted before

‘regulated’ in the heading – unless the regulated and unregulated parts of the

agreement can be clearly seen to be separate.

 

MBNA Comply

 

 

2 The name and a postal address of both trader and customer.

 

MBNA Comply

 

 

3 A description (in enough detail to identify it) of any security to be provided by the customer and a description of its subject matter. The description must be in the main agreement but the full terms can be in a separate document referred to in the main agreement.

 

MBNA Comply (I Think)

 

4 Details of any default charges which the customer or a relative of his is required to pay if he breaches the agreement.

 

MBNA Comply

 

5 Certain financial and related particulars (see below).

 

 

6 Statements of certain forms of protection and remedies provided for the customer by the Act (see pages 12–14).

 

7 A signature box (see Appendix 2).

 

MBNA Comply

 

Financial and related particulars

The following information must be shown together as a whole and not interspersed with any other information, apart from cross-references to terms of the agreement and sub- totals of the total amounts.

 

3 The amount of credit to be provided under a fixed-sum agreement (for example, a cash loan) or particulars of the credit limit under a running-account agreement (for example, a credit card). The credit limit can be expressed as:

 

a a sum of money, or

 

b a statement that the trader will, under the agreement, periodically determine the credit limit and notify the customer,

 

MBNA chose this option (on the T&C's apparently attached to the agreement but as this was done on a clipboard...?) questionable. But I'd say they Comply. However does this need to be on the sam bit of paper

or c a sum of money together with a statement that the trader may, under the agreement, periodically vary the credit limit and notify the customer, or

 

d if (a) (b) or © above are not appropriate either a statement indicating how the credit limit will be determined and notified to the customer or a statement that there is no credit limit.

 

5 In the case of all running-account agreements and of any fixed-sum agreements of the sort mentioned immediately above, the rate of interest and the total amount of other credit charges (for example a commitment fee).

 

MBNA Comply

 

6 The timing and amount of repayments of credit and credit charges. Timing can be

shown by one or more of the following methods:

$ the dates on which each repayment is to be made, or

$ the frequency and number of repayments together with the first repayment

date, or how this is to be calculated, or

$ a statement showing how the dates of repayment are to be determined.

The amount of each repayment can be shown as a sum of money, or as a proportion of an outstanding balance, or as a proportion of a specified amount (or by any combination of these factors). If it is not possible to use any of these methods, there must be a statement of how the repayments will be calculated.

 

MBNA appear not to comply

 

7 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.

 

Points to note

 

Under an agreement where any part of the total charge for credit will or can vary, there must be – linked with the disclosure of the APR – a statement that this has not been taken into account in calculating the APR and indicating how, and where possible when, any variation may occur. If the APR takes account of life assurance premiums paid to an insurance company net of income tax, this must be stated. Some tolerances are permitted in calculating the rate of APR and the disclosure of it. These are similar to those for the APR disclosed in credit advertisements and quotations (see the booklet Credit charges and APR). The APR must also be as prominently displayed as any other piece of financial information (including any statement of a rate of interest).

 

MBNA Comply

 

Signatures

All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box.

 

MBNA Comply

 

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This from the CCA 1974

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations.

 

So "it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement" is horribly written but I translate it as "if it claims to bind you to entering a prospective agreement" which I think maybe offset by the right to cancel - then again it may not... any advice?

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I've been emailed the consumer credit (agreements) regulations by a very helpful chap called dave - thanks for that.

 

Now a key part of this is the statement in the CC(A)R 1983 is as follows

 

S.I. 1983/1553 Schedule 6 - Regulation 6(1) (Pescribed Terms for the purposesof S61(1)(a) and 127(3) of the consumer credit act.

 

3. Agreements for running account credit - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

 

Now this is compared to the CCA 1974 which states:

 

b a statement that the trader will, under the agreement, periodically determine the credit limit and notify the customer,

 

Now as I read that my 'agreement' from MBNA complies with the Act but not the Regulations. For those without super vision the T&C's say.

 

1. Financial and related details

1a We will choose your credit limit and tell you what it is. We may vary it at any time and let you know.

 

Them 'choosing' the limit is indeed a method of determining the limit but is there more to it than that ie some form of credit check etc... if that is the case then MBNA do not comply with the regulations but do comply with the act.

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Meanwhile elsewhere in the regulations it states the same as the CCA1974 so the regulations say both what it says in the CCA and also that the method of determining the limit should be included. Its minor but these things all add up.

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I think we've been though this before on the CCA thread. If I remember rightly (and I may NOT be!!) them determing your credit limit by saying they will determine it from time to time is in fact including in the agreement how the limit is determined.

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It definatley complies with the act, but I'm not convinced about the regulations as they state both what it should say plus explaining how it should be detarmined I won't fight on that alone though.

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on your agreement - there's what I think is a signature in the top left corner over the Thomas Cook logo.

 

Now strangely enough, I received a cut & paste job from MBNA with no signature from them on it. However, they did also send a copy of their database records showing all my personal details, and on the top corner of this sheet, is the same sig. that's on the top of yours. So are they saying that's their sig. on your form? Because if it is, then it proves that they must have cut & pasted mine for their sig. to appear on a peronal details record.

 

And where's your sig?

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Mines there but scrubbed out (by me). That 'sig' appears on every MBNA document I've seen posted here - I mean not the samer persons sig - the exact same - pixel identical. So yes its just a stamp I suspect.

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