Slartibartfast -v- MBNA (Now with Cabot)

[rory32]

Whats my plan

That's up to you. You could make them a reduced settlement on the basis that they can't enforce the account (around 10 - 20%) or you can choose not to pay anymore towards the account.

[Slartibartfast]

thanks rory

 

Quote:

(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.

 

 

The advirtising on the reverse was of the time and we had a mobile phone, offered where it says 'PTO to apply'. Whether the terms were there on the original I can only guess - I wonder if anyone has this same mail-shot application.

 

 

Quote:

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

 

Does a date stamp and initials in a corner not do it for them?

 

Would a S.A.R - (Subject Access Request) request be useful?

[Slartibartfast]

OK, s59 and s127.

I think I've got my head around this now, no thanks to the Act and gobblydygook Regs but largely to you CAG CCA giants. My few remaning brain cells have been offically fried and I'm going to sleep on the whole thing and much better than before. In fact I might even have a bit of a chuckle before I do.

[mrmarmite]

ok glad u getting there, you like us all when we 1st started out, you get a headache VERY quiclky, just work ya way through all the "sludge" and the further down the line you go the more you understand it all. you received nothing more than an application form, what majority of creditors seem to do is after they receive a CCA from you they send out application form and copy of current T's & C's of which contailns ALL the prescribed terms, BUT as said copy of CURRENT T's & C's NOT actual credit agreement of time of application. these peeps are TRYING to lead you down garden path by implying that it is a "Properly Executed Credit Agreement" when it is not. I have come across this several times now on different credit card companies.

they key is you want letter from them saying they dont have a "Properly executed credit agreement" (my next project) then you S.A.R all credit reference agencies send them copies of that letter and order them to remove entry from your file, end result is to have a fairly empty and CLEAN credit file.

[Slartibartfast]

mrm,

yes, getting there and thats a fact. All I wanted was some time to recover and get back to work and that may well be the least of the benefits of arriving at this site.

 

There seems to be a number of varities of that sludge. Huge helpings from DCA/CC who pile it on thick so you can't escape. On the other hand is the sticky mire that is legislation. I read 'the Act' and some of Reg stuff as well as some of the beigger threads here which is hard work but hugely entertaining, got several serious headaches too. Getting to grips with it very slowly though and continually gaining in respect and admiration for those that continiue to battle on other peoples behalf.

 

ATM I'm not in the least bothered about Credit files - I never want a single penny of credit for the rest of my days!

[mrmarmite]

lol, let me guess, you have had lots of late nights rumaging around CAG, eye aches aswell as head aches, It's all worth it in the end, you will be very clear in your mind what you can and cant do but more importantly what the creditors can and cant do

[Slartibartfast]

You guessed right. It took me a week to read through one thread alone. At least I can recognise the points if not yet the subtleties. Answering one question poses another ten..arrggh...! Still a long way to go but the panic has given way to a much needed optimism.

[Slartibartfast]

Just received this from LLoyds re a loan. Looks OK to me but would appreciate any comments about what next to do. They want me to make payment etc. I have nothing to give them, still no positive income for the immediate future.

[car2403]

Just received this from LLoyds re a loan. Looks OK to me but would appreciate any comments about what next to do. They want me to make payment etc. I have nothing to give them, still no positive income for the immediate future.

 

Was this signed before you received it to sign? If so, it's void under s.59 CCA 1974. (Prospective agreements are void)

 

Also, it refers to a terms and conditions booklet - as these terms aren't in the agreement document itself (I'm assuming, as I can't see the terms booklet - does it follow page sequence with this agreement?) it doesn't meet the regulations.

 

There are some prescribed terms missing as well - no protection/remedies available under the Act for a start. (s.60(1)©)

 

Unforceable without a Court order, IMO. It would be worth posting the financial figures up, (they are blocked out here) so the interest/APR rate can be checked for accuracy.

[Slartibartfast]

OK, replaced the original which shows just the two amounts which are 23,000 and 354.72 No other figures. They did not send any T&C, just a complete statement of payments made and a copy of a DD form. The documents were all signed on the premises.

I do recall being told that the Life Insurance I took out instead of the loan protection would be necessary for the loan to be approved although this was only verbal. I stopped this after about 18 months - 2 years when funds became a little more sparse.

[car2403]

OK, replaced the original which shows just the two amounts which are 23,000 and 354.72 No other figures. They did not send any T&C, just a complete statement of payments made and a copy of a DD form. The documents were all signed on the premises.

I do recall being told that the Life Insurance I took out instead of the loan protection would be necessary for the loan to be approved although this was only verbal. I stopped this after about 18 months - 2 years when funds became a little more sparse.

 

I make the APR 7.947%, which is within the tolerance of 1% over.

 

If they haven't provided the T&C's under a s.78 request, they are in Default and can't enforce the agreement until they do. If the T&C's are in a separate booklet (as it seems is the case) it is improperly executed and falls foul of s.127(3);

 

(3)

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).

 

Along with the s.60(1)© failure, you can also argue prejudice in that you weren't aware of your rights until you've queried the debt now.

 

What are you trying to achieve by querying this agreement?

[Slartibartfast]

Thanks car

What are you trying to achieve by querying this agreement?

 

Not sure TBH. It's taking me a long while to get back to work and I have nothing to offer them apart from what I might borrow, which is an ever diminishing prospect in itself. I'd pretty much like them to accept my situation and be patient - but they don't seem to want to do that. Looked a bit like I was ready for the firing squad but you've given me a whole lot to take in which needs a few cells warming up.

[Slartibartfast]

Having given this much overnight thought I have written to ask for the T&C but I'm sure they followed on another page or pages, it seemed efficient at the time anyway. Meanwhile they have written further after saying that they cannot suspend the account further and are also threatening to cancel all bank cards, as if I'd be using the only one I have anyway. Odd, my current account is listed with the loan account demand on this last letter which shows a balance of £0 but it is nearly £1000 overdrawn.

 

It looks a bit bleak to me and I would be guessing that a move to the Court would be their next move, is this the logical progression?

[clearmydebts]

Potentially interesting and hopefully explosive thread. Subbing

[mrmarmite]

ok, i'll be on this thread 2moz to get you on track, me had 1 too many 2nite, don't panic or worry, life s to short! especialy when morons like there are just out there to rip you off OR trying to make you think that you are in the wrong when in FACT you are legally in the right and they in the wrong.

[Slartibartfast]

Hey MrM are you celebrating already? Head-wetting style I mean.

[Slartibartfast]

MBNA sent an application form and current T&C. I replied asking them for the relevant T&C of the time and got a letter back saying they have sent everything required by law, no more correspondence will be entered into regarding this matter. Somehow I can't believe this.

[car2403]

MBNA sent an application form and current T&C. I replied asking them for the relevant T&C of the time and got a letter back saying they have sent everything required by law, no more correspondence will be entered into regarding this matter. Somehow I can't believe this.

 

They are wrong;

 

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

 

Just because they said they won't correspond any further, doesn't mean you should just accept what they say as gospel, when it clearly isn't! Write back to them, including the text of s.77(1)/s.78(1) and ask them to comply - if they don't they are in default and can't enforce. If they still don't, sue them for unlawful Default/Termination of your account as they haven't met your request for pre-litigation disclosure.

[Slartibartfast]

ty car

 

They are wrong;

If they still don't, sue them for unlawful Default/Termination of your account as they haven't met your request for pre-litigation disclosure.

 

can I ask, is the situation now pre-litigation, I have only asked for the CCA so far or is this term generic. Legal parlance is definitely not my forte!

[car2403]

It is pre-litigation as you haven't issued a claim against them. (Yet!)

 

You have made a legal request under their obligations under the CCA, so they have to reply or face the consequences.

 

Don't worry about the legal aspect - there's loads of support/guidance on CAG to get you through it all.

[Slartibartfast]

I wrote again asking for the Terms and Conditions. Crossing in the post was this:

 

"Default Notice Served under Section 87(1) of the Consumer Credit Act 1974

Dear Slartibartfast

Credit Card Agreement; xxxxxxxx

We refer to the above agreement which you have entered into with us. Clause 3 of that agreement provides that you must repay immediately the amount of any arrears on the account. You are in breach of that clause because you have failed to make such payment and are seriously in arrears. A stop has been placed on your card.

In order to remedy this breach we must receive a payment of £xxxxx by xx January 2008 Your account balance is currently £xxxxx

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THIS BREACH.

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU

On or after the date shown, the agreement will be terminated and we will take court proceedings to recover the whole amount owed by you to us. Further statements may not be issued.

IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME.

IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU.

If you have not contacted us in response to our previous reminders you should do so now on 0161 819 2288, since this may enable problems to be resolved before action is taken against you.

Yours sincerely

Matthew McGrath,

Head of Customer Assistance"

[car2403]

Looks like they intend on enforcing the agreement by Defaulting you while they are in default of your request. You need to chase them up using the templates provided telling them to stop this action immediately or be reported the Court for abuse of process and seeking an injunction preventing them from Defaulting you. Realistically, there's nothing you can do to stop this but pursue them for removal when it has happened.

[Slartibartfast]

Do you mean that realistically it is not worth chasing this up?

 

I figure there will be more than one default on file before long no matter what.

[car2403]

Worth chasing it up, as it will strengthen your case later on, but I don't think it will stop them Defaulting you.

[Slartibartfast]

OK.

Is there a template or something I can adapt, doesn't seem to be anything in the DCA Letters section?