Mbna Cca - Is This Enforceable Please

[citizenB]

Reading around the threads it would appear that the FOS and Trading Standards are siding with the Credit card companies or saying that their remit is not to involve themselves in whether a document is unenforceable or not. Is it actually worth complaining to either of them !.

 

I have today received a letter from MBNA

 

Headed : IMPORTANT DEFAULT NOTIFICATION

 

Advises I am in breach of the agreed T&Cs and they are placing a restriction on my account.

 

Advises the arrears are £ xxx.xx and that failure of bringing the account up to date will result in the eventual termination of the agreement and the registration of a Default with CRAs. There is no date by which this has to be paid by.

 

What I dont understand is this bit...

 

"In addition, the advanced payment you made to secure approval for this credit card will be seized and used toward the paymengt of the outstanding balance and the remaining balance may be sold to a collection agent.".

 

What advanced payment are they talking about.. ?? I didnt pay anything in advance:confused:

 

I have just had some thoughts on this. If there had been any advanced payment to secure approval, it would have to be part of any contract / Agreement wouldnt it?. Signed by both me and them?

[citizenB]

Is this enforceable please

 

The T&Cs are definitely from a later date than 1999 the original signing of application form !..

 

 

Identifiable information. Documents will be returned after amendments.

 

 

 

It had been my intention to send a complaint to the FOS a while back. However other things got in the way and I didnt.

 

I have received several letters from MBNA advising that if I dont contact them then they may take legal action etc. I wrote back 2 weeks ago asking for their Final Response letter so I could make the complaint to the FOS and received a snotty reply saying to look at a letter that had been sent from them about 6 weeks ago.. Sure enough, they had said it was their final response so I am at the moment copying all my correspondence with them to send out to FOS later on today.

 

This morning however, I received an email advising the sender is dealing with my account THIS month ??. As I dont wish to communicate by telephone then they are suggesing email as a way forward ??? To reply by return as they are working within a limited time frame.

 

As I want to make absolutely sure of my ground before sending this paperwork off... could someone please have a look at the application/agreement form above again and please advise.. Should there be a space for MBNA to sign so the form can be executed.. Cos I have looked and looked and there is nowhere .

 

Any advise much appreciated.

Edited August 21, 2008 by citizenB

[citizenB]

bump:)

[ODC]

Totally UNENFORCABLE by virtue of NO Prescribed terms:D:eek:

[citizenB]

Phew, thank you. Paperwork will be in the post to the FOS tomorrow.

[star_scream]

The prescribed terms are on the RH side of the back page

[citizenB]

 

As I want to make absolutely sure of my ground before sending this paperwork off... could someone please have a look at the application/agreement form above again and please advise.. Should there be a space for MBNA to sign so the form can be executed.. Cos I have looked and looked and there is nowhere .

 

Any advise much appreciated.

 

Thanks star-scream and ODC for your comments. I looked back over the thread and Steven did in fact point out the prescribed terms were on the back page.

 

The question I really need answering is... Should there be a part of the application form for MBNA to sign. From what I can see there isnt. Does this affect the enforceability at all.

[ODC]

I thought by your post that the back page was a seperate document printed more recently than the appplication form. Can you be sure that they are one and the same document.

 

I should think that the lack of signature or space for signature by the lender should render it unexecuted

[citizenB]

I thought by your post that the back page was a seperate document printed more recently than the appplication form. Can you be sure that they are one and the same document.

 

I should think that the lack of signature or space for signature by the lender should render it unexecuted

 

 

My apologies for not being clearer ODC.

 

The document was copied on to one sheet by MBNA and no, I cant be sure they are from the original document. Although.. on the bottom of the front page at the bottom right hand corner there is the reference

 

NS990712

 

and on the back page same place the reference

 

LA-9-99 -2093-N

 

is printed. I just kind of assumed that it was from the original document. I guess I am really just clutching at straws. I know they can leave out the signature boxes for the CCA request and that they can sign it at any time, but I would have thought that there should actually be a space for them to sign.

[ODC]

I stand to be corrected but I would have thought that at the very least there should have been somewhere for the lender to sign to confirm the agreement. Other than the MBNA rubber stamp there is nothing to confirm MBNAs acceptance of you application. I would like to be surer that the T&Cs were actually part of the original document as way back in 1999 I dont think MBNA were that fussy. I have asked for one of the Mods to have a look see.

[citizenB]

I stand to be corrected but I would have thought that at the very least there should have been somewhere for the lender to sign to confirm the agreement. Other than the MBNA rubber stamp there is nothing to confirm MBNAs acceptance of you application. I would like to be surer that the T&Cs were actually part of the original document as way back in 1999 I dont think MBNA were that fussy. I have asked for one of the Mods to have a look see.

 

 

The separate T&Cs they sent in an earlier post are definitely from a later date because they are showing the £12.00 fee. I just copied over the agreement for CAGers to have a look at.

[ODC]

I think the answer rests on whether or not the prescribed terms they have sent you were in fact printed on the rear of the original document.

[citizenB]

I think the answer rests on whether or not the prescribed terms they have sent you were in fact printed on the rear of the original document.

 

Yes and this would only be apparent if and when MBNA were forced to produce the original at a court hearing.... !!

[ScarletPimpernel]

I thought it may be worth mentioning a few things about the way MBNA operates. This is based upon my own experience, and those of many CAGgers.

 

They are probably one of the most difficult creditors to deal with. There are a number of reasons for this.

 

• It appears that at any one time a number of departments may be involved in dealing with a debt, and there does not appear to be any meaningful communication between them. The result is that MBNA couldn't find their rectal orifice with both hands, even with the lights on.
  

• They sometimes also use external DCAs; as we all know, effective communication is an unknown concept to them, and so more confusion is added.
  

• MBNA employ many staff - indeed, they are Chester's largest employer (which may explain the local TS apparent reluctance to grip them). You wouldn't beleive that one town could contain so many morons. There appear to be two only job titles: Head of Customer Assistance, of which there are very many, and Specialist, which seems to be another name for someone who'd be flipping burgers if it were not for their lack of dexterity and the intellectual inability to master the 'Do you want fries with that' customer service technique.
  

• MBNA's preferred method of dealing with customers is by telephone. This is presumably because it's cheaper for them, and because it's much less accountable than writing. Unfortunately, because they employ so many people, and because so many of them are dullards with the social skills of plankton, speaking to them is unrewarding and pointless.
  

• MBNA know that, in common with many other financial institutions, many of their agreements are unenforceable. They have therefore devised carefully-worded letters to help them add yet more confusion.
  

• MBNA are an American company, and occasionally become confused as to which country's laws they are bound by. Churchill once said: "The Americans can always be relied upon to do the right thing - after they have tried everything else." They seem to believe that regulatory rules do not apply to them - as anyone who's tried to stop them phoning will have discovered. Similarly, their grasp of the DPA 1998 is tenuous.
  

• MBNA will occasionally indulge in account renumbering exercises. This naturally adds to the confusion, but I'm aware of cases where it has been used to surrepticiously merge two accounts into one.
  

• MBNA are known to change interest rates regularly, often to very high rates.
  

• MBNA will co-operate with CCCS and PayPlan, but seem to regularly end DMPs for bogus reasons - for example, claiming that payments that have been made have not. Even if they reinstate the DMP, they will often have added charges and interest for a period, bumping up the balance.
  

• MBNA's collections procedure appears to be entirely process-led. This means that there is little human intervention in the process, and once started, it does not stop - unless, of course, the customer does what they want, which is to either pay them, or phone them. No allowance has been made for error on their part, or any legitimate query or dispute - these are dealt with (in the loosest sense), in parallel, and usually by different departments. This means that whilst you may think you have established a meaningul correspondence at last, the threat-o-matic just keeps on rollin'. Their replies to letters are very rarely personally written - most seem to be standard templates or cut and paste from templates.
  

• In general, MBNA do not seem to favour litigation. Once the avalanche of threats, often on luridly-coloured paper and regularly bizarrely illustrated with pink pigs or elephants (more US influence, presumably), has stopped, they sell debts to the usual bottom-feeding suspects. This may well often be favourable to the debtor, since MBNA regularly sell debts that are unenforceable, in dispute, or otherwise faulty. In these cases, many debt buyers give up in a very short time, preferring to write off MBNA's cock-ups and concentrate upon less knowledgable victims.
  

The answer to their saying that:

they disagree that they have failed to supply me with the documents requested and as required by law.

is that it's half true. A true copy doesn't have to be an actual copy of the original agreement, so they may have complied with the law in that regard. However, they (and many others) regularly overlook the requirement to supply 'any other document referred to in the agreement'. Unless they can show that the Ts & Cs referred to on an application form are those other than those extant at the time of inception of the agreement, then they cannot contend that providing current Ts & Cs has fulfilled their obligation. MBNA don not seem to be able to supply original Ts&Cs. Combat indicators that they are waffling are phrases like: 'current Ts&Cs in order to be helpful', or 'current Ts&Cs for information'. Finally, the 'no further correspondence' ploy usually indicates that they've run out of lies.

 

I too think that there is meant to be a signature box for the creditor, even though they don't have to sign within it, and a rubber stamp is acceptable.

[ODC]

Yes and this would only be apparent if and when MBNA were forced to produce the original at a court hearing.... !!

CATCH 22

 

But then again their apparent reluctance to take you to court so far could be seen as an admission they have diddly squat.

[citizenB]

Thank you Scarlet Pimpernel (for giving me a good giggle) and to ODC for sticking with me, cos to be honest, I didnt really understand the question I was asking myself LOL.

 

I posted off my complaint to the FOS yesterday, although I dont hold out much hope for a cut and dried answer if other threads are to go by..

 

Thank you for your input and support x

[ODC]

SP has the measure of these oxygen thieves

[ScarletPimpernel]

CATCH 22

 

But then again their apparent reluctance to take you to court so far could be seen as an admission they have diddly squat.

 

 

I'm sure that unenforceability is one factor.

 

However, consider this: MBNA's business model must include the risk that some accounts won't get paid. As we all know, they have a standard collections process which, if unsuccessful, seems invariably to end in the debt being sold. I speculate that MBNA's policy is to cut and run rather than to pursue via litigation. That way, they can control their costs and get the money quickly.

 

I suspect that in most cases they've already made their profit by way of interest and penalty charges long before the account becomes delinquent, so that anything they can get is a bonus.

 

I think their collections process is probably really quite cheap. If the debtor pays anything, great. If not, then they know what it's worth to the debt-buying pond life, and selling it means they have the money immediately, and the tax break, and someone else can spend their money on litigation which, even if successful, may result in a £1 a month payment.

 

Recently HSBC started selling lots of old debt, much of it unenforceable, and I suspect that this was to bolster the books with 'instant money' at a time when not only irresponsible lending but irresponsible investment was worrying the shareholders.

 

Debt-buyers don't seem to be very discriminating - they buy huge portfolios of debt, and a few duff ones probably doesn't worry them too much - any DCA worth his salt can bully and intimidate sufficient people into coughing up that it's still worthwhile. As the credit crunch squeezes, and as the regulators start to take more interest in DCA practices, I suspect that they'll be in for a harder time.

[steven4064]

As the credit crunch squeezes, and as the regulators start to take more interest in DCA practices, I suspect that they'll be in for a harder time.

I do certainly hope so

[citizenB]

I do certainly hope so

 

I will 2nd that

[steven4064]

Hi guys

 

The various regulations mean that it is possible to have a nonesense situation. There are 5 possibilities (and I've seen them all on this site ):

 

1. The document is properly executed, complies with s78 and is enforceable

 

2. The document is not properly executed but complies with s78 and is enforceable by a court (I think this one is one of these)

 

3. The document is not properly executed, doesn't comply with s78 but is nonetheless enforceable by a court

 

4. The document is not properly executed, does comply with s78 but is not enforeable by a court

 

5. The document is not properly executed, doesn't comply with s78 and is not enforceable by a court

 

Without the signature of the lender it cannot be properly executed but it can (in principle) be any of the other 4. Because it is sgned by the debtor and (probably) has the prescribed terms on the back. IMO it is an example of 2. If you can demonstrate that the page with the prescribed terms is not the page from the back of the application form, then it is a 5.

[citizenB]

LOL, thank you Steven. I think I might S.A.R. them and see if I get any thing different back from them. I really appreciate the help

[foolishgirl]

Steven, your reply on CCA enforcability is really interesting but also somewhat confusing. Can you give an eg of (3) please? How is it possible for a doc. to be not properly executed, not compliant with S78 yet still enforceable in court?

[cashins]

If you can demonstrate that the page with the prescribed terms is not the page from the back of the application form, then it is a 5.

 

With the strict burden of proof on them in court, it's up to them to prove it is the back of the original application, otherwise it's 'Blue Peter'.

 

I have had the, 'we will not corresond on this any further..............' and agree with SP, at that point they are running out of road. In my case they sent me an illegible agreement and generic terms and refuse to send me something I can read.

 

I have told them to shove it, ie, put up or shut up.

 

We shall see.

 

David

[ScarletPimpernel]

LOL, thank you Steven. I think I might S.A.R. them and see if I get any thing different back from them. I really appreciate the help

 

 

Perhaps unsurprisingly, MBNA apply their own rules when it comes to SARs; they often send just statements with a letter saying 'on this occasion we have not treated your request as a SAR'. They did this to me, and have studiously ignored my complaints. Predictably, ICO have done nothing.