Hi MoonHawk, fancy seeing you here

If the SAR does not indicate that the cancellation docs were sent, they cannot claim to have sent them. As to your agreement, you have signed a document containing the amount of credit, the APR and the repayment schedule. This is enough to make it enforceable in court. Unless, of course, they didn't send you the cancellation docs which would make the whole agreement unenforceable by itself.

Shooter, to fully comply with your request they must send the terms and conditions that the agreement refers to. In my opinion, though, a judge could enforce that as it is a document containing all precribed terms and it is signed by you.

shooter, don't see much wrong with that, all prescribed terms are there. You could go after them for not sending you the cancellation details but apart from that, it seems to me like it would be enforceable.

If an agreement lacks prescribed terms, a court cannot enforce it.

Just a small correction, the CCA 2006 only applies in this sense to agreements signed after 6th April 2007.

If the agreement includes a cancellation notice, then it is a cancellable agreement. No question about it.

Depends on individual circumstances really, describe the situation you are thinking of and we can advise further.

We've had this one before, I think the general consensus was that's it's crap. They would still need a signed cca to enforce in court.

I wouldn't have thought so, how can you default the same agreement twice?

You don't ask them, you tell them it's unenforceable and that you won't be making any more payments. Tell them they should remove any mention of this account from your credit records as they never had consent to process your information.

And what part of withholding payment due to no/flawed credit agreement is unlawful?

I'm sorry, but the morals argument just doesn't wash in my opinion. You have to fight fire with fire and the only way to do that is to use whatever lawful methods we can. Now, whose fault is it if they have taken shortcuts and not done things properly, thereby making a debt completely unenforceable? Certainly not the fault of the consumer. Consider the issue of PPI, people pay a fortune for it and when it is actually needed, the companies get out of paying on whatever technicality or small print they can find. Do they care about the real hardship this may make people face? Of course they don't! Do I care if creditors lose money because they never asked me to sign an agreement with the correct prescribed terms? Not in the slightest!!

That's the admission you need right there, if they want to issue loans without agreements then that's their lookout. I have a car loan through work and I still had to sign a credit agreement. I would write back to them and thank them for confirming that no agreement exists. Tell them that, due to this, the debt is completely unenforceable under Section 127 of the CCA 1974 and therefore you will be making no further payment. Then have a celebratory drink :grin:

Because debtors generally don't instigate proceedings, they just stop paying. Don't you think it's very telling that when debtors do stop paying, the creditor does not take them to court?

As long as the agreement is pre April 2007, it doesn't matter if the debtor wears a t-shirt to court emblazoned with "I spent the money...nah, nah, nah". If there is no agreement, the judge CANNOT make an enforcement order as per S127 of the CCA 1974. This is providing, of course, that the debtor presents the facts properly and tells the judge that this section applies and therefore enforcement is not possible. Having had the goods etc is irrelevant, the judges cannot just ignore the law and make orders they shouldn't, just because they have aproblem on moral grounds.

Leyla, send the reminder to Global as that's where you sent the original request. Wouldn't hurt to then send a copy of the original request and the reminder to MBNA with a short covering note stating that you are keeping them informed of the situation.

Hi again, if they haven't yet sent the credit agreement then they are in default and you can stop paying them. I assume you sent the request by recorded delivery so you can prove they have received it? If so, you can either send them a reminder or give them another calendar month to hang themselves and commit an offence. The choice is yours. Personally, I would send a reminder as follows: [Their address] [Date] [Your address] Account number xxxxxxxxxxxxxxxxxxx Dear sir or madam Reminder for request for copy of credit agreement under Section 77/78 of the Consumer Credit Act 1974 I wrote to you recently requesting a true copy of any signed, executed credit agreement in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of a fee of £1.00. This payment was included with my original request. Under the above Act, a creditor has 12 working days to supply this document to the debtor. Royal Mail confirms that you signed for this letter on [insert date] and so this deadline expired on [insert date]. Thus far I have received no response to my request. This means that you are currently in default of my request. Whilst your default continues, you are not entitled to enforce any part of this alleged agreement. This includes, but is not limited to, the following: You may not demand any payment on this account, nor am I obliged to offer any payment to you. You may not add any further interest or charges to this account. You may not pass this account to any third party. You may not register any information in respect of this account with any of the credit reference agencies. You may not issue a default notice related to this account. Please also note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute. You have a calendar month from the expiration of the 12 working days to rectify your default. Therefore, I must receive the document I have requested by [insert date]. Failure to meet this deadline is a criminal offence and will be reported to the relevant authorities. If you do not have any signed agreement in relation to this account, please confirm this in writing. I will be making no further payments to this account until this matter is resolved to my satisfaction. It would be a breach of the Administration of Justice Act 1970 for you to continue to take any action against this account whilst this default remains. Please conduct all communication with me regarding this account in writing only. For your convenience, I include a copy of my original request letter. All letters have been sent to you by Recorded Delivery so I can prove that you received them if necessary. I look forward to your swift response. Yours faithfully [Your name] At least if you send a reminder, you can demonstrate in any future court action that you did all you could to help them comply.

Quite right, how can you ever be defaulted on an agreement you did not make?

Well, I'm absolutely speechless. I reported MBNA to Trading Standards for non-compliance with Section 78, non-compliance with Section 85 and attempting to enforce an unenforceable agreement (an application form missing all prescribed terms). Trading Standards wrote to me stating they would be taking no action due to the fact they considered MBNA had complied. I sent this to TS: I received a reply this morning, which reads: I give up

But they haven't complied with S77/78 according to TS, as anything given after the 12 working days isn't given under S77/78. So, according to TS, regardless of the existence of an agreement, they cannot enforce it as their default continues. I know I'm being a bit facetious, but it does demonstrate how ridiculous that statement from TS is.

Or we just never make the second request ;-)

I've been mulling this over today and a thought occurred to me. If, as TS state here, statements given after 12 working days are not given under S77/78, then the creditor has still not complied with the S77/78 request and we can still hold them to be in default. Theoretically, then, if they get to 12 working days and haven't complied, they can never actually comply until we issue a new request and start the 12 working day countdown again. Therefore, we don't have to pay them as their default will continue forever

I did. What do you want an opinion on? It's been repealed for agreements from 6th April 2007, that's fact. It's not retrospective, so older agreements are still covered by S127...that's fact too. I'm puzzled as to what else you expect anyone to say?

This is true to an extent, but remember it's not retrospective, so only applies to agreements taken out after 6th April 2007.