Slartibartfast -v- MBNA (Now with Cabot)

[Slartibartfast]

Hello all.

Looks like I'm at the start of a long struggle.

I have a bank loan and three credit card accounts

to which I have paid nothing for a few months. I

had decided on bankruptcy but I may be in a position

to get back to work within the next six to twelve

months and resume payments. I don't know if this

is a possibility having read a few stories here and

elsewhere abount finance company impatience. I hope

you'll be able to point me in the right direction.

So far I've had a few letters asking for arrears to

which I responded with a SOA and token payments of

£1 since even after disposing if every non-essental

expenditure I had nothing left to buy food. I stopped

full payments on the loan last in case the bank froze my

accounts both pesonal and business. I had a date for

bankruptcy but cancelled it since I may be able to get

some money sometime in the not too distant future with

which to repair the situation.

So many questions.

I have had contact from one DCA who I've asked not to

phone. First thing here is a CCA request I guess?

Will it be a good idea to speak to the bank about the loan

or send a SOA and the template letter requesting they accept

£0 for now?

I'm in a petty pickle with an almost dead business that I

can't sell, injury and illnes to contend with and less than

a proper income. Benefits may be one step but I would be

appreciative of any pointers/comments. etc. I spoke to CCCS

some months ago and BR seemed to be the concensus then but

it may be counter productive for the long term and getting

back to work.

[mrmarmite]

ok not to worry, send ALL the DCA's a CCA letter (in template library) include £1 postal order and send by recorded, that will get them off your back for a little while,

i know it hard to come up with money BUT you also need to send S.A.R to the original creditors there could well be a LOT of charges placed on these accounts unfortunatly to do this you need to send £10 for each S.A.R (recorded aswell) if there are lots of charges you can then take the banks/credit card companies to court and get your charges back.

 

keep us posted and if not sure about anything just shout in this thread.

 

aslo if you do I strongly suggest you do not either make or accept ANY phone calls. this way they can't try to lie/bully/intimidate you, request all communication to be in writing ONLY, again shout if they ignore and we will point out a few things to them

[mrmarmite]

any thing apeared yet?

[Slartibartfast]

Thanks for asking MrM

 

When things go pear shaped they sometimes morph through several other fruit and veg first. I coulldn't even keep up the token payments and have had two accounts passed to DCAs (One in house.) One CC Co. pressuring and trying to force payment and about to default but I've posted a couple of CCA requests and I have a thread started in the Cabot forum.

 

Shame that the pressure mounts so much since I could still do the bankruptcy thing and no one would get anything. As it is when I found this site, although I had the pertition printed thrice and fees in hand I decided, perhaps foolishly, to rise to the challenge. Time will tell

 

Since I just ran out of health, work and steam the payements just stopped so I don't think I have any charges to claim but just need to try and find a way back on 'the rails' as it were. I've been reading through a large number of posts for a couple of months now and I'm certainly much more able to handle the bullying that goes on. Thanks to some goodly people this is an awesome resource!

[mrmarmite]

any probs just shout, i'll get e-mail when you put a post in,

majority of dca's are pushover when you can handle them correctly, at end of day should anything go to court your circumstances will not chane for health reasons so dca's have a choice, like it or lump it (pref the latter of course)

[mrmarmite]

need results if any from dca's about cca's, more help to know which dca's you are dealing with as cant really treat all the same.

[Slartibartfast]

In reply to my CCA request MBNA have sent a 'Copy of the Original Credit Card application' with an extra 4 pages of T&C headed 'This is a copy of your agreement...etc'.

No sign of them signing anything anywhere apart from a scribble in the topmost corner of the application form. They have credited the £1 postal fee to the card account.

Attaching images now (hopefully) :

 

on reverse:

 

 

My head hurts after reading weeks and months worth of CCA discussions.

 

Unexecuted? Leave them to make the next move ?

[rory32]

Ah bless, MBNA still sending out applications as credit agreements.

 

The file is too small to read properly, but it looks like every other application form that MBNA have sent out which means it would be totally unenforceable as a credit agreement.

[Slartibartfast]

Redid the upload after figuring it out. Should be slightly legible now.

[rory32]

Well the application is of course just that, an application. It doesn't contain the prescribed terms, it looks like they have just photocopied some t&c's onto the back.

 

What year was the application made?

[Slartibartfast]

Fom is dated early 2001.

Looks like the T&C are separate and the stuff on the back, which I'm assuming is original due to an offer at that time, refers to it.

All in all unexecuted?

[rory32]

Okay the copy of the agreement is totally unenforceable because

(a) it doesn't contain any prescribed terms. These must be on the same page as the signature not in a seperate document. So unenforceable under s127.

(b) it's an application form which hasn't even been signed by the creditor so is precontractual. So unenforceable under s59.

 

If they are happy to say that this is a copy of the agreement then I would accept it as such as it's completely unenforceable.

[Slartibartfast]

They refered only to the Credit Card application in the covering letter.

So is there still a dispute and can/should I just leave them to it and respond when they try to do anything daft like pass the account to a DCA?

[rory32]

It may be worth while just sending them a letter requesting clarification that indeed the document that they have sent you is a copy of the credit agreement. Ideally they will confirm that it is.

 

Nowing MBNA this is all they will have anyway, sometimes they even just send people the bit at the bottom of the application form stating "This is a Credit Agreement..."

[shane5408]

Hiya,

 

is the t&c's document you uploaded actually on the back of the application form or have MBNA just stated to you that they were?

 

regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

 

If my post has been useful to you please click the scales

[Slartibartfast]

Hiya,

is the t&c's document you uploaded actually on the back of the application form or have MBNA just stated to you that they were?

 

The images show the front and rear of the application form. I'm guessing that they are a copy of a two sided piece of paper since there was an offer on the rear which I remember from the time. The text was in a column on one side of the rear. There are another 4 separate pages of T&C which look as though they may have been completely apart from this.

Does this make sense?

[shane5408]

Hiya,

 

Completely agree with Rory here. On the basis of what they have provided you the debt is legally unenforcable. The prescribed terms are mentioned in the t&c's you uploaded but there is no feasible link between the two documents which means that the creditor has failed to comply with stautory Regulations. It also means the prescribed terms cannot be seen to be within the agreement, hence 127(3) renders it unenforcable.

 

If they can produce the original however, which clearly has those t&c's affixed on the reverse of the document I would think it would render the agreement improperly executed and enforcable only on order of the court. In that instance you could also argue s59(1) applies as the creditor never signed the agreement making it unexecuted and prospective, therefore void.

 

The problem is given the ommission in the regulations that allow the creditor to hide behind the 'true copy' requirements, it is very rare that on first pass they will send the original document (that is, if they have it)

 

I would write back and inform them on the basis of what they have provided they have no legal recourse to enforce and unless they can provide the orignal agreement which was correctly executed and contains all the prescribed terms within the agreement you require their discontinuance of enforcement activities forthwith.

 

I would also be interested to know if you received the cancellation details as part of your CCA Request? It says on the application form 'you have short while to cancel, details will be sent to you.' These details should of been furnished to you as part of the CCA request as you are entitled to see the agreement and any other document referred to in it. Furthermore under s64 the creditor has a legal duty to of provided you with these cancellation details when you first opened the account, if they were never sent to you the debt can be ruled unenforcable by virtue of s127(4)(b)

 

kind regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

If my post has been useful to you please click the scales

[Slartibartfast]

thanks shane and rory, polite letter on its way to the post office in a few ticks.

 

Should all letters go recorded delivery? It's beginning to tell on someone else's purse strings with 4 CCA requests sent so far - not much under normal circumstances but ATM a slight fortune.

[shane5408]

Hiya,

 

Yeah recorded delivery is best, it can cost a small fortune initially but it really is worth it in the end, for CCA;s you need to retain proof of postage and have details of when it was recieved by the creditor so as to keep strict timelines.

 

regards

shane

[Slartibartfast]

Prompt reply from MBNA.

"The copy of the application form was in fact a copy of the credit agreement as evidenced by its' form and content.

We also sent you a copy of your most recent statements abd a copy of the Terms and Conditions" ......

For the avoidence of doubt we have complied fully with S78"

 

The T & C appear to be the most recent too not from 2001. Perhaps for the avoidence of doubt I ask for the original T & C.

 

I've been doing a fair bit of reading and decided to post here the Terms which were printed on the back of this application form. I'm begining to think that MBNA have mucked up with this account too. I'll post the bits & peices first tough, thenask if anyone can clear up my misconceptions

 

 

MBNA

FINANACIAL AND RELATED CONDITIONS

for the MBNA Credit Card and Credit Card Cheques

IMPORTANT - YOU SHOULD READ THIS CAREFULLY - YOUR RIGHTS

The Consumer Credit Act 1974 covers this Agreement and lays down certain requirements for your protection which must be satisfied when the Agreement is made If they are not the Bank cannot enforce the Agreememt against you without a court Order.

The Act also gives you a number of rights. You have a right to settle this Agreement at any time by giving notice in writing and paying off all amounts payable under the Agreement. lf you have obtained unsatisfactory goods or services under a Transaction financed by this Agreement, apart from any purchased out of a cash loan, you may have a right to sue the supplier, the Bank or both. Similarly if the contract is not fullfilled perhaps because the supplier his gone out of business, you may still be able to sue the Bank.

if you would like to know more about the protection and remedies provided under the Act you should contact either your local Trading Standards Department or your nearest Citizens Advice Bureau.

LOSS OR MISUSE OF CREDIT CARD

if tne credit card is lost, stolen or misused by someone who obtained it without your consent. you nay be liable for up to £0 of any loss to tne Bank. IF it is misused with your permission you will probably be liable for ALL losses. You will not be liable fof losses to the Bank which take place after you have told it of the theft, etc.

Set out in paragraphs 1-15 below are some of the provisions contained in Conditions 1 and 2 of the MBNA Credit Card Terms & Conditions. The other conditions referred to in these paragraphs and the applicable definitions can be found in those Terms & Conditions.

1 We will from time to time choose the credit limit and notify you of this.

2 We will choose the first statement date. Later statement dates will fall approximately one month apart. If you ask, we may change the statement date.

3 By the payment due date shown on tne relevant statement, you must make at least the minimum payment shown on the statement unless we allow a payment holiday under condition 2.4

4 The minimum payment shown on the statement will be the greater of

(a) 2% of the Account balance as shoown on the statement; or

(b) £5, or the Account balance as shown an the statement if less than £5:

except as mentioned in conditions 2.4 3.5 and 3.6

5 We will charge interest on the outstanding amount of:

(a) any Retail Transaction at 1.1678% monthly.

except as mentioned in condition 2.1

(b) any Cash Transaction Cheque Transaction or any Balance Transfer:

{1} if made during the period starting on the date of opening the Account up to and including 01 January 2002. at 0.1610% monthly during that period, and then at 1.1678% monthly, and

{ii} in any other case, at 1.1678%. monthly and

© any charge under condition 13.1 at 1.1678% monthly

6 We will charge a handling charge for a Cash Transaction and/or a Cheque Transaction at 1.5% of the amount of the Cash Transaction or Cheque Transaction. minimum £2. maximum £25

7 This table shows how the APR depends on the type of Transaction, when interest is charged, and the credit limit.

 

 

8 The APR does not take into account any of tne followng alterations. We may from time to time alter the interest rate on any item, alter any charge under this Agreement and alter the basis on which any interest is is charged or any charge under this Agreement is made, by such notice in writing to you as is required by law, except as mentioned in condition 1.11 Where this is required by law we will at the earliest opportunity inform you of a valid reason tor altering any charge

9 We may at any time reduce the interest rate on any item incurred during a promotion period by notice under condition 1.8 If we do this, we will charge interest on the outstanding amount of the item at the reduced rate during the promotional period, and then at the normal rate applying to the item. We may not remind you that the promotional period or reduced rate is about to end or has ended

10 We will charge interest on the outstanding amount of

(a) any handling charge at the rate then applying to the relevant Cash Transaction or Cheque Transaction; and

(b) any interest at the rate then applying to the relevant Transaction or charge.

11 For the period storting on the date of opening the Account up to and including Ol January 2002 we will not increase the interest rate on any Cash Transaction, Cheque Transaction. Balance Transfer or on any handling charge.

12 We will not charge interest on the outstanding amount of a Retail Transaction shown on the latest statement, if the whole Account balance as shown on the previous and latest statements 1s paid by the payment due date on the relevant statement.

13 We will charge interest on the outstanding amount of any Retail Transaction (except as mentioned in condition 2.l), Cash Transaction, Cheque Transaction, Balance Transfer, charges under condition 13.1, handling charges and interest starting on the transaction date and ending on the date of full payment.

14 We will charge interest on a daily basis both before and after any judgement

15 We may at any tame allow you to omit all or part of a minimum payment during the payment holiday specified in a notice under condition 14 If we do this, we will charge interest as if no payment holiday had been allowed, and we will not extend the period within which payment must be made in order to avoid interest on Retail Transactions

 

FREE pay as you go mobile phone

Please turn over and complete your

application form - and apply before

26 June 2001. Every new

Customer will then receive

a free mobile phone.

[rory32]

"The copy of the application form was in fact a copy of the credit agreement as evidenced by its' form and content.

 

Oh dear what a shame it's form and content very clearly don't make it a compliant credit agreement.

[Slartibartfast]

Is it enforceable though? It would be nice to be able to keep they at bay for a while.

 

Interestingly enough I found some other related papers one of which came with the card and purports also to be the agreement. Looks like this is the one that was sent with subsequnt cards too, I certainly never saw the application more than once.

[rory32]

Is it enforceable though?

No.

[Slartibartfast]

Well thats a musical sound!

 

Having spent the best part of a week looking at this in reference to that big thread over there (10,465 posts ??) I'd be more than a bit interested why you think not.

Not that I'm looking for the negative but I'd like to get my head around current thinking. The application looks to me like it has all prescribed terms and does have a little scribble in the top left corner which could be the other signature. Whats my plan of attack in other words really?

[rory32]

It really comes back to my previous post

(a) it doesn't contain any prescribed terms. These must be on the same page as the signature not in a seperate document. So unenforceable under s127.

(b) it's an application form which hasn't even been signed by the creditor so is precontractual. So unenforceable under s59.

All the prescribed terms need to be in the agreement not after the agreement or in another documentor photocopied onto the back.