Angry Cat V Morgan Stanley Ms Cannot Find Credit Agreement

[angry cat]

I ssued a Claim against Morgan Stanley last May 2006, the following was their 'Defence

 

 

 

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1 July 2006 I have received the Morgan Stanley Defence dated 30 June 2006.

 

Scary Stuff

 

angry cat

 

 

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Morgan Stanley's

 

DEFENCE

 

1. The Defendant denies (insofar it is alleged) that it acted improperly or unlawfully.

Specifically The Defendant denies that it has debited the Claimant's account number XXXXXXXXX ("The Account") unlawfully or in breach of the Claimant's rights in respect of the Account.

 

The Agreement

2. The Claimant applied for a Morgan Stanley credit card on or about the end of February 2000. The Claimant's application was accepted by the Defendant and the Claimant signed a Credit Agreement confirming her agreement to be bound by the Terms & Conditions of the Morgan Stanley Credit Agreement ("The Agreement")

As at the time of filing this Defence, the Defendant has been unable to locate a copy of the Agreement signed by the Claimant. A copy of the current Morgan Stanley Gold Card Terms & Conditions is attached for reference purposes only. The Defendant intends to amend this Defence by attaching a copy of the Agreement signed by the Claimant once such document is located by the Defendant.

 

(***PLEASE NOTE THE ABOVE "ONCE SUCH DOCUMENT IS LOCATED")

 

3. The Agreement entitles the Defendant to charge default fees to the Account if the Claimant committed breaches of the Agreement as described in the Agreement.

 

4. Reasonable steps were taken to bring the fees to the Claimant's attention during the course of the Claimant's application for a Morgan Stanley credit card.

 

The Fees

5. The Claimant breached the Agreement twenty two times between June 2001 and May 2006 as described in the attached schedule to the Defence (the "Breaches").

 

6. The Defendant admits that fifteen £20 default fees ("the Fees") were debited to the Claimants Account by the Defendant between 4 May 2002 and 2 May 2006 in respect of the Breaches. The Defendant did not debit any Fees in respect of the other seven Breaches of the Agreement.

 

7. In each case, the Defendant was authorised by the Claimant to debit the Fees to the Account in respect of the Breaches pursuant to the terms of the Agreement.

 

8. It is denied that the Fees are penalties or otherwise unenforceable, as alleged or at all.

 

9. The Fees represent a genuine pre-estimate of the loss that would be suffered in the event of a breach of the Agreement by the Defendant. The Defendant has at all times complied with its obligations under the Agreement by continuing to provide credit facilities and associated services to the Claimant, including an online account centre, access to customer service representatives, convenience cheques and other services. The Defendant will rely on authorities such as White and Carter (Councils) Ltd v McGregor (1962) AC 413, Export Credits Guarantee Department v Universal Oil Products Co and Procon Inc and Procon (Great Britain) Ltd (1983) 1 WLR 399, Indian Airlines v GIA International Ltd (2001) EWHC 2361 and Jeancharm Ltd (t/a Beaver International) v Barnet Football Club Ltd (2003) 92 Con. LR 26 in this regard.

 

10. Further or alteratively, the Fees were not unreasonable, extravagent or unconscionable when compared with the losses, costs and other expenses that were incurred by the Defendant as a result of the Breaches. The Defendant will produce evidence of its losses, costs and other expenses in support of this position. Accordingly, the Fees are properly recoverable as liquidated damages.

 

 

Okay thats it apart from the statement of Truth.

 

 

 

As of today Tuesday 17 April 2007 MS have still failed to supply a true signed executed copy of the Agreement which I requested in July 2006.

 

MS are in Default of S78(1) Consumer Credit Act 1974, MS have committed a legislative Offence.

 

I have reported the Offence to Trading Standards.

 

Now I have a new twist in the saga, MS agreed to remove any adverse data from my CRA files. However, I am informed today by Equifax that my data has been reinstated on their files.

 

Bad stuff.

 

AC

[jezzyjet]

hi there, im looking into a similar senario at the moment,my understanding of this is,, if the lender cannot provide a signed copy of the cca within 12 days of request they are in default,if after one calendar month this becomes a criminal default ,when in default the lender cannot enforce the contract (cca) or i believe charge interest ,and therefore if you decide you dont want to pay off the balance of the card ,unless they find the original signed copy,theres nothing they can do,if in the unlikely event they take you to court,they havent got a leg to stand on without the cca as it would be thrown out by the judge as un-enforcable,i believe also if it did go to court and they provided the valid cca on the day,the judge would not look favourably on them as they had clearly broken the rules on providing a copy to you on your request ,im in the process of seeing if i can wiggle out of an 8k cc bill and get back £500.00 of charges and also believe that without the valid cca they HAVE TO remove the adverse data on your file ! im not an expert but im sure this is all correct, hope its of help jezzy

[angry cat]

hi there, im looking into a similar senario at the moment,my understanding of this is,, if the lender cannot provide a signed copy of the cca within 12 days of request they are in default,if after one calendar month this becomes a criminal default ,when in default the lender cannot enforce the contract (cca) or i believe charge interest ,and therefore if you decide you dont want to pay off the balance of the card ,unless they find the original signed copy,theres nothing they can do,if in the unlikely event they take you to court,they havent got a leg to stand on without the cca as it would be thrown out by the judge as un-enforcable,i believe also if it did go to court and they provided the valid cca on the day,the judge would not look favourably on them as they had clearly broken the rules on providing a copy to you on your request ,im in the process of seeing if i can wiggle out of an 8k cc bill and get back £500.00 of charges and also believe that without the valid cca they HAVE TO remove the adverse data on your file ! im not an expert but im sure this is all correct, hope its of help jezzy

 

Section 78 of the Consumer Credit Act 1974 refers to the duty of the creditor to give information to the debtor under (in my case) a running account credit agreement.

 

The section states that if the deafult continues for more than one month then an offence is committed. The penalty for this offence can be a fine of up to £2,500 and up to six months imprisonment.

 

If the creditor fails to comply with section 78 (1)which relates to supplying a copy of the agreement to the debtor on request, he is not entitled, while the default continues to enforce the agreement. Therefore one could try to argue that the trader cannot continue to pursue one all the while they are unable to provide a copy of the agreement.

 

 

"im in the process of seeing if i can wiggle out of an 8k cc bill and get back £500.00 of charges and also believe that without the valid cca they HAVE TO remove the adverse data on your file ! im not an expert but im sure this is all correct, hope its of help jezzy"

 

Personally, I am not attempting to wriggle out of a debt as I have a valid concern regarding mis-sold PPI that I will address once Trading Standards have arrived at a final conclusion re MS.

 

Turning to the adverse data issue, MS removed my CRA Default, but since I have reported them to TS they have reinstated the Default with Experian & Equifax...they cannot provide a true signed executed copy of the agreement. However, that doe not appear to halt them from leaving defamatory data on my CRA files.

 

I telephoned the Information Commissioners Office today, they informed me that I have to submit a complaint form to them which will take approx. 3 months to process. Information Commissioners Office informed me, the other alternative magistrates court.

 

Disgraceful

 

AC

[jezzyjet]

Very impressive, good luck you certainly sound like you know what your doing!!

[angry cat]

Very impressive, good luck you certainly sound like you know what your doing!!

 

 

I don't know about that but...I will most certainly continue to exercise 'My Rights', hopefully with the assistance of the BAG/CAG as there is very lttle help for us consumers from the regulators.

 

I also wish you good luck

 

Love AC

[angry cat]

The following link is for my old thread which I am moving to here

 

http://www.consumeractiongroup.co.uk/forum/general/9016-angry-cat-morgan-stanley.html

 

AC