MBNA No CCA, Gimme my interest :)

[steven4064]

HHNF

 

Use the 'go advanced' button and use the link icon

[standingupformyself]

keep trying please. we are lapping all this up....................

[hellhasnofury]

Hello Steve,

 

Where is the go advanced button??????????

Try this one

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

[wednesday1867]

Thanks Hell, that is some document started reading it, dont know if it is wise adding bits and bobs from it, cos there is so much of i.

 

The Go Advanced button is next to Post Quick Reply, underneath this quick reply box

[hellhasnofury]

Thanks Hell, that is some document started reading it, dont know if it is wise adding bits and bobs from it, cos there is so much of i.

 

The Go Advanced button is next to Post Quick Reply, underneath this quick reply box

 

 

Hello Wednesday,

 

It is some document, perhaps don't quote any bits from it, just quote the Wilson v ????? and let them waste their time looking at it.

 

Oh and I found the go advanced button thanks, but what does that do???? :o

[hellhasnofury]

I also found this on a thread so I cut and pasted it for reference.

 

Even in situations where the creditor does provide an executed copy, that

is not necessarily the end of the matter.

Because of the complexity of the Consumer Credit Act, there are still

possibilities that the document is not properly executed. For instance in

Wilson v First County Trust 2001, Mrs Wilson contested, and won, on the grounds that because the document fee was wrongly included in the "total

amount of credit" that the contract was unenforceable.

This is what the Judge said then-

 

It was common ground that the agreement of 22 January 1999 was a regulated agreement for the purposes of the Consumer Credit Act 1974. Section 61(1) of the Act sets out three conditions which must be satisfied if a regulated agreement is to be treated as properly executed. Condition (a) requires that a document in the prescribed form containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor and by or on behalf of the creditor. In the present context "the prescribed terms" for the purposes of section 61(1)(a) of the Act include "a term stating the amount of the credit" – see paragraph 2 in schedule 6 to the Consumer Credit (Agreement) Regulations 1983 (S.I. 1983/1553). It followed from the fact that the amount of the credit was mis-stated that the agreement of 22 January 1999 was not a properly executed regulated agreement.

 

 

Section 65(1) of the 1974 Act provides that an improperly executed regulated agreement is enforceable against the debtor on an order of the court only. Section 127 of the Act sets out the powers of the court upon an application for an enforcement order under (inter alia) section 65(1). Section 127(1) provides that the court shall dismiss the application if, but only if, it considers it just to do so having regard to (i) prejudice caused to any person by the contravention in question and the degree of culpability for it, and (ii) the powers conferred on the court by section 127(2) and sections 135 and 136 of the Act. Section 127(2) empowers the court (if it appears just to do so) to reduce or discharge any sum payable by the debtor, so as to compensate him for prejudice suffered as a result of the contravention in question. Sections 135 and 136 confer further powers on the court in relation to the terms upon which enforcement orders may be made.

 

 

Section 127(1) of the 1974 Act is subject to the restrictions imposed by sections 127(3) and (4). Those subsections set out circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. In particular, section 127(3) is in these terms:

 

"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)."

It follows that in a case where there is no document signed by the debtor – or no document signed by the debtor which contains all the prescribed terms of the agreement – the court has no power to make an enforcement order. In such a case, the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor.

 

The Judge then carried on to say

We held that the present case fell within section 127(3) of the 1974 Act – because (in the absence of a term correctly stating the amount of the credit) the document signed by the debtor on 22 January 1999 did not include all the prescribed terms of the agreement. It followed (i) that the agreement was not enforceable against Mrs Wilson ]

 

It therefore follows that if any of the other prescribed terms are wrong, that

contract is equally unenforceable.

[wednesday1867]

Just had a thought, in a week or so, im due to file for a refund of the PPI premiums and asociated interest from MBNA.

 

Obviously im filing for this tomorrow or Tuesday, so to save myself £120, could i wait and week and include the PPI, or more chance of winning if i keep them seperate?

[steven4064]

You cannot take bits and bobs from the judgement without understanding the full argument (in fact 5 arguments - one from each of the panel). having said that, here is an interesting quote from the judgement

'It offends every notion of justice or fairness that because of some technical slip which in no way prejudices him, a borrower, having received a substantial sum of money, should be entitled to retain or spend it without any obligation to repay a single penny.'

[wednesday1867]

I dont think i will mention the wilson case, as i dont get half of it :o

 

Ive had another rethink about the POC

 

(g) Interest which should be returned at either:

(I) MBNA’s own rate of 24.9% compounded as per the as the recent precedent in Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants) allows, or

(II) Interest at MBNA’s own rate of 24.9% or

(III) Compounded statutory interest of 8% or

(IV) interest pursuant to section 69 County Courts Act at such rate and for such periods as the court deems just.

 

I'm gonna keep the compounded 24.9% in, MBNA havent got my agreement. Are they really going to turn up in court to argue this? What can they say in court?

 

To put them off a bit more, cant i put something into the POC's about the offence MBNA have committed in not supplying my agreement, i believe the punishment is a fine of £2,500? So can i ask for the Judge to impose this on MBNA? Just maybe something else that may make MBNA want to settle before it gets to court.

Edit

Do i need to change the date on the spreadsheets to tomorrows date?

[steven4064]

On the interest I rerer you to my post #99 above - I still think you are a bit confused. You are entitled to all the interest they levied on the charges PLUS interest to 'compensate' you for having to effectively borrow money to cover what they have taken from you until the point they give it back.

 

I would leave out the CCA stuff - it's a different issue at this point. I think you should take it up with the OFT.

[wednesday1867]

I am confused now

 

This claim is being raised as MBNA dont have an agreement for me. The charges for late fee's etc have already been taken off my balance and finished with.

 

This claim is to get the remining balance written off and the interest ive paid returned, as no confirmation of an agreed rate of interest to be paid.

[steven4064]

Sorry, missed that bit. You can still claim back the interest they charged you - ie the interest they levied on that part of your balance that was made up of charges. In addition they should compensate you for the fact that they had your money and you didn't. In principle, for you to have the same amount of money 'in your hand' that you would have had if they hadn't taken it, you would have to have borrowed it from somewhere - that is what the 8% interest is for. Now Sempra has (may have) changed that in that it is now recognised that you have to pay compound interest to borrow money. So you can claim compound interest on the charges and onthe interest levied on the charges.

 

I would use the current MNBA rate (whatever that is - it must be on their website) to calculate the interest levied on the charges and your bank's authorised borrowing rate for the 'compensation' (altough you probably shouldn't use that word).

 

In your PoC just note that the charges have already been paid back. That is what we did in our claim against GE Money. We dind't work out the interest in the way I have just described because, obvoius;y, it was before Sempra - we just added s69 interest.

[ony]

I think this needs a bit more thought. The precedent in Sempra is for compound interest as opposed to simple interest on the basis that that is what would have had to have been paid to borrow the same money elsewhere at some rate to be determined to replace the money taken. I don't think this argument would justify 24.9% compound instead of 8% simple.

 

However, MBNA levied interest on the charges at 24.9% whenever your month-end balance was greater or equal to the charges plus interest up to that point. A reasonable estimate of this interest is just 24.9% from the date of the charge until now, provided your balance was always bigger than charges+interest so far. If your balance at any time was significantly smaller than this, then you might have to adjust your estimate of interest charged a bit.

 

The purpose of the judgement in Sempra was to put things back as they were (or would have been) - in your case had the charges not been taken. I think you should argue that, because MBNA had this money of yours, you effectively had to borrow to replace it.

 

If you borrowed it from MBNA it would cost you 24.9% (but no-one would borrow money from a CC company like that if they had the choice - they would borrow it from the bank at the authorised overdraft rate, say 14.9%.)

 

So for every charge and every interest payment on those charges, you effectively would have had to borrow money from your bank at the authorised overdraft rate to maintain the amount of money you had 'in your hand'.

 

Thus, IMHO, what you should claim is:

 

a) charges

b) interest levied on those charges by MBNA at 24.9%

c) i) interest on BOTH at 14.9% (to replace the money taken from you, using Sempra as precedent)

ii) if the court won't wear that, then 8% compound (again based on Sempra)

iii) if the court is REALLY mean, 8% s69 interest

f) costs

 

 

Got my own thread http://www.consumeractiongroup.co.uk/forum/mbna/98164-ony-mbna-continued.html.

MBNA just sent me a letter saying included was my original agreement/statement of account but neither the agreement or full statement of account was there.

 

I was about to start proceedings against them but not too sure what I can claim. Is it as Steven advises charges/interest on charges, compound interest + charges or all interest paid on this account?

 

If the former would i then take my existing charges/interest schedule and then apply interest to that total compounded over 6 years?

 

If the latter then take the cash/retail interest charges from my statements and apply interest as prescribed?

 

thx

[steven4064]

I think the various cases that have been decided over the last couple of months indicate you can claim

 

a) charges

b) interest levied on those charges

c) interest on both a) and b) to compensate you for the bank having you rmoney

 

c) is discretionary - I think you should claim compound at a typical authorised borrowing rate but give the court the option of giving you s69 instead.

 

Perhaps others would like to comment, though.

[wednesday1867]

As we know im going for PPI refund as well as interest from MBNA. Today i recevied a letter from MBNA with a copy of what they refer to as my application, but is headed "Credit Agreement Regulated By The Consumer Credit Act 1974".

It showed i ticked the box, or the box was ticked and i signed it, so thats the PPI sorted

Now how does this affect this, they havent supplied me any agreement in response to my CCA, i would of thought they would know i now have a copy?

I havent got a scanner, ill take some snaps with the digital camera and get your opinions on if it is in fact enforcable.

Hope not, cos pretty gutted about the PPI, but ney mind:cool:

[steven4064]

You could still explore the mis-sold angle on PPI - have a look in the PPI forum (I'm afraid PPI is outside my expertise - I'm just repeating what I heard sokmewhere)

[wednesday1867]

Ive got a thread there already

 

Im just in the process of uploading these pictures, just noticed on the application, it says "Date of Application 12 01 1974" I signed the agreement 12 Jan, but not in 1974, does that make a difference or am i grabbing at straws?

[wednesday1867]

[wednesday1867]

Heres the rest :0

[wednesday1867]

Also just noticed this is an appliction for a credit card, surely that affects it?

[steven4064]

Affects what?

 

Also what date was it signed if not 1974?

[wednesday1867]

I signed and dated it 2002, but they said date of aplication 1974.

 

I wonder if they send the proper agreement out at a later date to sign and thats what they cant find, cos they still havent sent anything in relation to my CCA, even said it was done thro HBOS and i should contact them for my agreement

[wednesday1867]

Back on the PPI for a second, not a lot of people view that thread, so ill ask here.

 

While ive been with MBNA, i was charged in the region of 40 times for being over my limit, something im not proud of, i was paying the minimum or a bit over, but with the charges, it kept getting higher, anyhow i asked about the terms of the PPI and if it would be void when i was over my limit, this is the paragraph they reply to that

 

 

Quote:

I confrim that the terms and conditions of the policy state if payments are not maintained, the PPI will be automatically suspended. I understand that you are concerned that on the occasions that your account has been in arrears, you have continued to pay premiums for a covere that was void. I confirm that that when the cover is automatically suspended, the premiums also stop. When payments are again maintained, the cover reinstates and premiums recommence. I have enclosed a copy of your XX statement which shows that as your account was in arrears, no PPC premium was charged.

Strange the months statements they sent me, was the month i had asked for the PPI to be cancelled :grin:

 

I need someone elses interpretation of what that paragraph says, i read it as in the months i didnt pay, i didnt get charged, i did tho

 

Or does it say every month i was charged for being over the limit i shouldnt of been charged PPI as the account was in arrears?

 

Or does it say every month i was charged a late fee, the account was in arrears, so i shouldnt have been charged?

 

Bottom line is, i was charged every month til i cancelled it.

 

Just dont know what to come back at them with

[wednesday1867]

I gave MBNA a week, it ran out yesterday even tho they didn't get the letter til wednesday. When a get home from work tho I'm filing with mcol

[wednesday1867]

Will

 

MBNA Europe Bank Plc

Chester Business Park

Chester

 

Will that suffice for the address on MCOL?

 

Or do i need a street name or House?