Is My Agreement Enforceable - Useful

[greenlion]

Hi I am challenging my credit card agreements and I have applied for my CCA's from MBNA, Mint & Citi.

 

Citi did not send my cca within the 12+2+30 and I refered them to the ombudsman - they are still requesting my monthly payments which I am witholding - they say, "since the recent court case" ? That I am not allowed to withold my monthly payments despite being in dispute with them ?? Is this true ? Any advice ??

 

MBNA have sent me a copy of my application form - this also says underneath, "Application Form Credit Agreement Regulated by the Consumber Credit Act 1974 - How to Apply", as does my Mint application form - are these the specified documents that they are supposed to supply me with ? or do I have a case for them failing to supply me with a signed credit card Agreement ?? advice would be very welcome Thanks Mike

[GuitarHero]

Best bet is to start a thread for each of the creditors in their respective forums. You'll get the most uptodate advice then. A lot hinges on when you actually took out the original credit cards.

[greenlion]

Thanks for the response, Much appreciated

 

MBNA was taken out in 1998 and Mint was in 2004

 

regards

[GuitarHero]

Well from the dates it would suggest that you are fine. Also there is a lot on here about MBNA agreements - which quite often are enforceable. Whether they'll take you to court is another matter. See http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

[Redfish]

Hi I am challenging my credit card agreements and I have applied for my CCA's from MBNA, Mint & Citi.

 

Citi did not send my cca within the 12+2+30 and I refered them to the ombudsman - they are still requesting my monthly payments which I am witholding - they say, "since the recent court case" ? That I am not allowed to withold my monthly payments despite being in dispute with them ?? Is this true ? Any advice ??

 

MBNA have sent me a copy of my application form - this also says underneath, "Application Form Credit Agreement Regulated by the Consumber Credit Act 1974 - How to Apply", as does my Mint application form - are these the specified documents that they are supposed to supply me with ? or do I have a case for them failing to supply me with a signed credit card Agreement ?? advice would be very welcome Thanks Mike

 

Firstly, I don't think you'll get much joy from the Ombudsman...they don't consider what the law says, they even admit that themselves, and many people here have found they even side with the banks.

 

Secondly, you only needed to wait 12+ 2, not 12+2+30 - before it was the case that after 30 days they would have committed an offence, but that provision has been repealed.

 

Thirdly, the recent court cases they may be referring to are the Waksman and Carey judgements. Even though they are legally obliged to send you your agreement and they are in breach and can't enforce the debt if they don't, they can still harass you for payment as this harassment was not regarded by the judge as 'enforcing' the debt and therefore it was considered okay. He also stated that they can also put a negative record on your credit file. You will have to be okay with both the harassment and your credit rating being affected if you want to challenge them.

 

It sounds like you have application forms and this is usual with MBNA, they often don't have agreements and try and tart up an application form to look like an agreement. Check if there are any prescribed terms included, even if there are, check that this isn't an application form with terms cut and pasted onto the side or back to try and make it enforceable. This kind of photoshop job is very common with MBNA. Best to scan it blank out the personal details and post it up for people to comment.

 

Basically lenders will try anything to scare you and get you to pay up. You can't reason with them. Just do the homework to ascertain whether what they've sent you is enforceable, and if it isn't, then just sit tight and wait it out.

 

BTW I have an MBNA application form which they've stuck terms onto, but a deeper investigation shows clearly that those terms don't match the current terms they have sent, and the application form itself doesn't match the current terms either. They eventually shot themselves in the foot by sending out a default notice and terminating the account - the contents of the default notice gave even more ammo to this argument and was in itself faulty...so they're stuffed.

Edited April 20, 2010 by Redfish

[onestressedwoman]

After 2 years of trying to get copy of CCA having been asked for copies of my signature and recieving serious harrasment and unfounded threats to make me bankrupt.

 

My rep now tells me of a change of law saying that they don't need it anymore to enforce debt is this true.

 

stressed again

 

OSW :-?

[greenlion]

Hi Once again many thanks for the links. You are a gent !

Some really interesting stuff in there, I have similar concerns ie : I completed an application form - which the MBNA form clearly states on numerous occasions in large type - it then states in tiny writing above the signature box that I am signing a credit agreement - I suspect that although the CC act states the prescribed terms required that many banks will fight and throw up smoke screens - it is a pity there is no definitive ruling (maybe there is that I have not found) on a court case that shows a successful outcome and the rulings within that case. I think as with myself we are all a bit desperate to get rid of credit card debt which is designed to keep you in debt (I have spent nothing on my card for over a year and yet the last three months my balance outstanding has actually gone up due to changes in interest charges - Bizzare !), and yet we are all a little worried about challenging the banks, which is our legal right, because of their knowledge of the system and bottomless pot of cash for a legal fight !

 

regards

 

Mike

[greenlion]

Hi

 

I am not sure how it works in the financial sector, but I have had experience of groundless threats in a trademark dispute against my company - there is a legal response you can make which is that to make groundless threats against a company or individual is in itself an offence and that they should "cease and desist form making those threats".

 

I wound my self up on numerous occaisons with this process of obtaining my CCA with the card companies - until one day I told myself - this is a completely legal challenge - the people who work in these call centres have no idea about the process and workign of the Consumer Credit Act and are very often only tying to hit a target of getting you to make a payment on a debit card (CHCHCHiCChing ! Commision for the agent) one even asked me why I wanted my CCA to which I politley responded that is none of your business - which it isn't !? The problem is debt = stress = vulnerability = compliance to threats - KEEP IT CALM AND LEGAL and remember THIS IS YOUR RIGHT - the law is here for US - not for other people - so use it fully and don't be intimidated.

[Redfish]

After 2 years of trying to get copy of CCA having been asked for copies of my signature and recieving serious harrasment and unfounded threats to make me bankrupt.

 

My rep now tells me of a change of law saying that they don't need it anymore to enforce debt is this true.

 

stressed again

 

OSW :-?

 

Certainly not true, they do need to have an enforceable agreement! There was a recent ruling which made it possible for lenders to send you a reconstituted agreement (not the original) in response to your CCA request, but it also confirmed if they have varied the agreement (most of them have varied it, interest rates, charges etc), then they have to send you a copy of the original.

[Redfish]

Hi

 

I am not sure how it works in the financial sector, but I have had experience of groundless threats in a trademark dispute against my company - there is a legal response you can make which is that to make groundless threats against a company or individual is in itself an offence and that they should "cease and desist form making those threats".

 

This was the basis of a recent test case, to rule that harassment was illegal, but unfortunately the consumer lost out on that issue, the judge ruled that this was ok. If you're interested do a search on this site for McGuffick, and you'll find out about how that test case worked out.

Edited April 20, 2010 by Redfish

[onestressedwoman]

Thanks Red Fish - this has been going on so long -

 

You have relieved me this site is definatly my guardian angels

 

I'll post again tomorrow after the call to rep which I AM DREADING not very ascertive anymore (I don't know if thats spelt correctly:oops:

 

OSW

[Redfish]

Thanks Red Fish - this has been going on so long -

 

You have relieved me this site is definatly my guardian angels

 

I'll post again tomorrow after the call to rep which I AM DREADING not very ascertive anymore (I don't know if thats spelt correctly:oops:

 

OSW

 

If your 'rep' is a Claims Management Company then they are probably trying to get out of refunding your money ... if you haven't paid them then get rid of them, they'll do you more harm than good. These CMCs lost out in a test case because it was shown that they could not take the lender to court to write off the debt - the CMCs wanted quick money. But if you are not paying the debt then the onus is on the lender to prove the terms of the debt by producing the agreement. You can't take them to court and expect to win. But they will find it impossible to enforce the debt (they can only harass you), unless they can produce the original agreement and it has to have all the prescribed terms correct.

 

This is the wording from the actual judgement that you can ask your rep to refer to - about the need for lenders to provide a copy of the original agreement in response to a s.78 CCA request if the agreement has been varied:

 

Citing HHJ Waksman QC in Carey v HSBC, 23 December 2009, when an agreement has been unilaterally varied “Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request”.

 

Remember that most agreements have been varied - the lender has altered the interest rates, or altered the charges. If your account goes back before 2007 then there is every likelihood that the agreement will have been varied.

[onestressedwoman]

Thank You !!!!!!!!!!!!!!!!

 

Will refer her to the above and also discuss the file to be copied to me if it is in order then I should be able to follow it but I am seriously slow in responding to mail I worry all the time

 

Can you imagine what would have happened if I hadn't posted here I would have lost all my hair overnight

 

Account goes back to 2001 so well before 2007

 

Post again when I speak to rep

 

Thaank you again !!!!!!!!!

 

OSW

[Deedy]

Hi there!

 

I wonder if anyone can please give me some advice about hubby's Credit Agreement from 1993.

 

In short he took out an agreement with Frasercard in 1993 then in 2000 ran into financial difficulty and it went under Chiltern Debt Management until November last year when we decided paying £450 per month for 9 years was quite enough, so we stopped payment to Chiltern.

 

He was then recently contacted by CL Finance who threatened Court Action as they had bought the debt from GE Capital (as was) and registered the debt with the court. In the meantime hubby sent them a subject access request and all that came back was a bunch of spurious addresses, telephone numbers and a printout of what had been paid to Chiltern for 9 years. Sadly, the court papers got lost in the post and never arrived at the court and judgement was made against my hubby, but has since been cleared, however, CL Finance were not in possession of the credit agreement when it was entered into court - only the agreement number was quoted, as we asked for a copy of the agreement which they could not provide. Now because we have threatened CL Finance to take them back to court as they did not have a copy of the credit agreement, one has turned up. The original is illegible but they have provided a blank copy but the blank copy does not contain all the information from the original, and as far as I can tell does not contain a couple of the "prescribed terms" required to enforce it which are mentioned in this thread.

 

Can anyone tell me if we can apply to the court to get this money back from CL Finance as they were not in possession of the agreement when they took hubby to court?

 

Many thanks folks!

 

D

[Mightyacorn]

Hi there!

 

I wonder if anyone can please give me some advice about hubby's Credit Agreement from 1993.

 

In short he took out an agreement with Frasercard in 1993 then in 2000 ran into financial difficulty and it went under Chiltern Debt Management until November last year when we decided paying £450 per month for 9 years was quite enough, so we stopped payment to Chiltern.

 

He was then recently contacted by CL Finance who threatened Court Action as they had bought the debt from GE Capital (as was) and registered the debt with the court. In the meantime hubby sent them a subject access request and all that came back was a bunch of spurious addresses, telephone numbers and a printout of what had been paid to Chiltern for 9 years. Sadly, the court papers got lost in the post and never arrived at the court and judgement was made against my hubby, but has since been cleared, however, CL Finance were not in possession of the credit agreement when it was entered into court - only the agreement number was quoted, as we asked for a copy of the agreement which they could not provide. Now because we have threatened CL Finance to take them back to court as they did not have a copy of the credit agreement, one has turned up. The original is illegible but they have provided a blank copy but the blank copy does not contain all the information from the original, and as far as I can tell does not contain a couple of the "prescribed terms" required to enforce it which are mentioned in this thread.

 

Can anyone tell me if we can apply to the court to get this money back from CL Finance as they were not in possession of the agreement when they took hubby to court?

 

Many thanks folks!

 

D

 

Deedy,

Firstl I suggest you start your own thread, your enquiry will get lost in this thread.

 

Top of this page is a box with:-

The Consumer Forums > The Consumer ForumsDebt Action Group > Debt Collection Industry Is My Agreement Enforceable - Useful

 

Click on Debt Collection Industry,

 

When page opens scroll down to "New Thread" and off you go.

 

Paste a link on this page by all means.

[Deedy]

Many thanks Mightyacorn - done!

 

Cheers!

[vint1954]

Many thanks Mightyacorn - done!

 

Cheers!

Copy the link to your thread Deedy and pop it on here.

[Mozz1]

So, having received an application form as a response to a CCA request (along with a demanding letter for good measure) what's my response?

 

I accept what people are saying but that's no use without some backup here guys.

 

I have no idea what I'm looking at here. What are they actually required to provide me with when I issue a CCA request?

 

 

D

 

Delfi's post is quite old (!) 2007, but what response did s/he get to the above sensible question?

[Mozz1]

If your 'rep' is a Claims Management Company then they are probably trying to get out of refunding your money ... if you haven't paid them then get rid of them, they'll do you more harm than good. These CMCs lost out in a test case because it was shown that they could not take the lender to court to write off the debt - the CMCs wanted quick money. But if you are not paying the debt then the onus is on the lender to prove the terms of the debt by producing the agreement. You can't take them to court and expect to win. But they will find it impossible to enforce the debt (they can only harass you), unless they can produce the original agreement and it has to have all the prescribed terms correct.

 

.

 

ok, but can they trash your credit rating? Or can one demand that the credit ref agencies remove the reference?

[atom02]

Edited April 29, 2010 by atom02
deleted - duplicate post

[lightningd]

I have just been sent a copy of an application form with my signature on it instead of the original cca. They have reconstituted the agreement in a few page printout. They say they are in the process of sending me a copy of the original agreement. Why go through all this instead of sending out a copy of the original agreement unless they dont have it . How can I prove if its enforceable or not. Can anybody clarify the exact wording or conditions. This is from cap1.

Edited May 1, 2010 by lightningd
correcting spelling

[Old Cogger]

I have just been sent a copy of an application form with my signature on it instead of the original cca. They have reconstituted the agreement in a few page printout. They say they are in the process of sending me a copy of the original agreement. Why go through all this instead of sending out a copy of the original agreement unless they dont have it . How can I prove if its enforceable or not. Can anybody clarify the exact wording or conditions. This is from cap1.

Can you upload the CCA minus your details as It could be part of the answer I am looking for - reconstited CCA with a possible lifted signature??

[Deedy]

Hi All,

 

If the cca was signed prior to 2007, there is a provision for making an agreement unenforceable if it does not contain certain pieces of information. If one of the following "prescribed terms" is missing, the agreement is unenforceable.

 

A. Amount of credit - A term stating the amount of credit

B. Repayments - A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:-

(a) number of repayments

(b) amount of repayments

© frequency and timing of repayments

(d) dates of repayments

(e) the manner of which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

C. Rate of interest - A term stating the rate of interest to be applied to the credit issued under the agreement.

 

D. Credit Limit - This may be a term or the manner in which it will be determined or that there is no credit limit.

 

Hope this is of use!

[lightningd]

Can you upload the CCA minus your details as It could be part of the answer I am looking for - reconstited CCA with a possible lifted signature??

Hi Mike . Do you just want the application form part of it uploaded or all the pages .If its the latter i will get back to you after i copy them to the laptop.

Regards

 

Lightningd

[willy2006]

I just cant get my head around this at all.These forums still mentioning unenforcible agreements.What if in my case there are not ANY agreements in place.We have been going around in circles since last July,three companies havent provided anything other than terms and conditions.They state thats all they have to provide and have said they can not produce the agreements.If they did have them I think we would have gone to court by now,but still we get hounded by solicitors letters and debt collectors.FOS are now investigating but I presume it will come to nothing.IF there are no signed agreements than these companies are operating my dads accounts illegally as they shouldnt be sharing data,shouldnt be adding defaults,and shouldnt be using anyone 3rd party.

 

IS this correct? could anyone with professional knowledge please advise me?thanks in advance.:???: