CL Finance/Cohen Claimform - MBNA [ryanair] Credit Card debt **WON**

[car2403]

Gaz,

 

The scans aren't great, so I'm not sure I can tell you for sure.

 

From what I can see with the MBNA one, it is an application form. Now, an application form is enforceable under the CCA 1974, but it must contain the prescribed terms. The prescribed terms for Credit Cards are credit limit, interest rate and repayment details. From what I can see, these are on the same side as your signature. What is interesting, though, is that the terms and conditions they've sent include the header "Credit Agreement regulated by the Consumer Credit Act", but that also appears on the page with your signature on it - the terms also seem to restate the interest rates, etc. This leads me to believe that the terms document isn't part of the signature document, as it contains the same information - it would be interesting to hear from you if the interest rates, etc, are different, as that would support this view also.

 

As for the Abbey one, I can't tell (the posts don't distinguish which reply is about which account) if they've complied with the same prescribed terms. If they haven't, the debt will be unenforceable in Court.

 

Oh, you seem to have lots of different threads regarding these debts - it would be an idea to ask site admin to merge the threads, as you should stick to one thread per issue - otherwise it gets confusing. It also means you get all the advice you need in one place and those helping you don't get confused as to where you are. I hate to say it, but it also stops you getting the wrong or flawed advice, in that more people will be able to see the whole case from scratch, making it easier to keep you on track.

[car2403]

On the Abbey agreement which they sent out to me, which i signed on the 25/9/2002 i can only see the credit reference number and credit limit of £8500. The APR Rate is on the other small piece, which was photocopied on the other side of the agreement.

So i can't really say if the APR was on the original agreement.

 

If the interest rate and repayment details are missing, they can't enforce. (s.60/s.61/s.127(3) CCA 1974)

 

There is some discussion as to whether the APR is the interest rate also;

 

http://www.consumeractiongroup.co.uk/forum/legalities/136701-apr-con.html

 

Just something as come to me looking over what they sent me in the CCA. Was on the MBNA Application form i cant find anywhere where they have signed the application. I thought that was law for the creditor to sign and stamp the agreement forms with a date, there is an attempt to sign this right in the lefthand corner. Weather that them saying they have signed the agreement i don't know.

 

The absence of a creditors signature is unlikely to be enough to refuse enforcement - s.127(3) only requires the debtors signature as a minimum.

[car2403]

Also how the MBNA papers was sent to me is how i've laid it out in my previous post, thats all what came, also it was a bit confussing for them to sent the Abbey CCA in the same enverlope.

 

The MBNA one is enforceable then, as it contains those prescribed terms and your signature on the same page. (Albeit, they seem to be relying on other terms that don't seem to form part of the same agreement - I can only assume that they are providing those as current, rather than original, terms of the agreement) How much is this MBNA one for? Are you currently making reasonable/affordable payments? Have you reclaimed charges/PPI on the account yet?

 

The Abbey one isn't enforceable, as it doesn't contain the prescribed terms. From what I can see, they've sent you a bundle of standard T&C's, which they seem to be relying on as all being part of the same document. Send the letter I've posted above, telling them the reply isn't sufficient, and see what you get back. Now, if the APR and repayment details in those T&C's are shown to be part of the original agreement, which you've signed, that too would then be enforceable. So, the same questions apply there.

 

Just to clarify, you're still waiting on a response to your CCA request to Capital One, but they are in default of that request. Have you chased them?

 

You mentioned a NatWest Default thread - I can't find that? What is that and where is the thread exactly?

 

Lets stick to one thread for all of those, as folks (me!) are easily confused...

 

:grin:

[car2403]

I know what you mean.. prior to 2007 I estimate I would write perhaps 4 or 5 letters a year... now I am writing that many a day !!

 

Ah, that's only because your doing The Times Crossword - by post!

[car2403]

Hi CitizenB

 

Funny you said about both them letters being signed by the same person.

Considering both letters i sent went to different addresses in Chester.

I may be plucking at straws, but ain't they breaking the dater protection law. As in pricible i am still dealing with two companies, and i've not received any letters stating both companies have merged together.

Any veiws on this?

 

Gaz

 

You should complain to companies house, as they are clearly the same person and therefore can't represent 2 different companies in the same capacity.

[car2403]

I would ring them to see what they say. If they ask for payment, refer them to the letters you've already sent. Also record the call, then send the letter that CB has suggested, pointing out you've already called and ask them to deal with your query before writing to you again.

 

It may be time for a harassment letter, if they continue - have you sent that already?

[car2403]

guzzleguts, as they are supposed to provide ALL information they hold on you, I would have thought that only one payment would be necessary. However, you never know with MBNA. so it might be a good idea to S.A.R - (Subject Access Request) each account separately.

 

This is wrong.

 

It's one SAR for each Data Controller - in this case, it's the same DC with 2 accounts. just be sure that your request refers to account numbers for identification purposes only, not specifically requesting information on those accounts alone, and you will only need one request.

[car2403]

You can't prove when it was/wasn't sent though, so that's a non-starter IMHO.

[car2403]

If it is only arguably wrong (like here because it took longer in the post than they allowed for), then it's more of a grey area because you don't want to tip them off but, since it might be your word against theirs, you want to get it on record as early as possible that it arrived late.

 

Section 88 requires the date specified in the notice to be not less than 14 days after the date of service, so provided the notice arrived on the Monday, then it is valid because the date specified is exactly 14 days after the date of deemed service using the CPR analogy (assuming that UK Mail S is equivalent to first class post).

 

If UK Mail S is not the equivalent of first class post, the latest version of the CPR timetable does not apply and the DN is almost certainly invalid.

 

Deemed service only applies, unless the contrary is shown, so if you can "show" that the DN arrived on a day other than the Monday, then the date of actual arrival is what counts. If the DN did not arrive until after Monday (and you can "show" that), then it is invalid.

 

My call (though others might do things differently) would be to get it on the record but subtly that the DN arrived on whatever date it did arrive. One way might be to include a line in your CCA request if you have not already sent it.

 

"I refer to a Default Notice received from your organisation on [insert date] in relation to the above account."

 

The date of delivery of the DN is irrelevant - what is relevant is the date of postage, plus allowance for the 14 days stipulated and any extra days for any service of the DN.

[car2403]

However, I am aware that car2043 does have a differing opinion on dates of served documents but i can't find his post at the moment. I mention this just to make you aware of a possible argument that may occur in Court.

 

I think I was playing Devil's advocate...

 

IMHO, arguing that sufficient time hasn't been allowed for service of a DN wouldn't prevent a claim being allowed to continue if that was the only argument.

 

Should you have other issues, such as invalid DN due to unenforceable agreement, or incorrect figures would strengthen your defence.

 

I can't see a claim being successfully defended on the basis of a lack of time being allowed for Service of the Notice.

 

I would imagine that these companies are getting this very, very wrong if they aren't allowing this time, and a Judge probably wouldn't want to consider this argument on it's own merits, without supporting arguments.

 

Having said that, we know these companies can get these things very, very wrong - just look at the Banks' approach towards account charges - so I wouldn't rule anything out. (Should I decide not to continue playing Devil's advocate, that is! :-|)

[car2403]

It would be a very brave (or foolhardy) judge who went directly against the statute. If any judge does lean towards this argument, then the defendant should (very politely) ask the judge to specify his reasons for accepting a DN with less than 14 clear days in the judgment. It should clarify his thoughts, I hope.

 

And would also give grounds for an appeal

 

[car2403]

It could be that Lewis are collecting the debt for Abbey/MBNA, but they haven't bought it?

[car2403]

I have to say, CL Finance came up with the Deed of Assignment when I asked to see it in my GE claim.

 

You should acknowledge and defend on the basis of a holding defence, asking them to prove their claim against you by disclosing the documentation needed. Problem will be if they do, in which case you may want to go for a Consent Order offering payments you can afford, meaning you avoid a CCJ.

[car2403]

Northampton will accept service of documents by fax

[car2403]

Great to see the timeline - it makes giving advice easier, especially on longer threads like this one, so I'm hoping others will take a leaf from your book on that one, Gaz.

[car2403]

(Applause)(Applause) CCM, can we all send MBNA one of those !!!!

 

I certainly wouldn't.

 

I would use it if it applies to my case against them.

 

Remember that each case turns on it's own merits - what applies to this thread may not apply in your situation, so while we may have "standard template defences" they only apply in certain situations.

 

Using the wrong defence (standard template defence or not) can have serious consequences if they don't apply to your individual circumstances.

 

[car2403]

Hi

 

Had a letter back from MBNA, as i ask for my SAR and they returned my £10 Postal Order with there letter. Here's the letter they send me, plus the letter i sent them. I did put an Computer generated Signiture on the letter i sent them.

 

Any surgestions what to do next with these morans.

 

Gaz

 

Hmmm...

 

The DPA states; (s.7(3))

 

(3) A data controller is not obliged to comply with a request under this section unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which that person seeks.

 

What is reasonable would have to be decided by a Court.

 

I think it's unreasonable to request proof of ID and address/signature when they are already communicating with you at your current address. I mean, what's the risk, exactly? They send statements to your address and you make payments, meaning they know you are receiving correspondance at that address.

 

Anyhoo, there's 3 things you can do;

 

- Comply with their request (edit your signature so you'd recognise it at a later date, should it "appear" on new documentation they send you )

 

- Ignore their letter and see if they comply anyway. (HFC did exactly that to me, asked for Driving License, then sent the response anyway - imagine my follow up letter to them; "you needed proof of my ID before sending me my data, but then chose to not require it and sent it anyway - in what way did you need it firstly, secondly, why have you breached that requirement by sending this anyway? Etc, etc)

 

- Sue them for non-compliance and ask a Judge to decide if this is "reasonable" or not. (This is very easily done, by the way!)

[car2403]

As they have sold the Account on to CL Finance, couldn't i mention this in my Defence for non Compliance of evidence.

 

Well, yes, but I'd assume the documentation you've asked for will be supplied to you before you get to Court.

 

Couple of things they sent my £10 postal order back,

 

Probably so they can claim you haven't paid for the SAR, so they aren't in non-compliance with the request!

 

also i had to sign for the letter this morning as they sent it Special Delivery.

Is that a 1st for MBNA sending there letters SD.

 

I can't see how proving you received it helps them, so I'm not sure on that one

[car2403]

The ICO is as about as much use as an ashtray on a motorbike, IMHO.

[car2403]

Car, i notice you are now on the site team, congrats, ive always found your posts very informative and wish you well.

 

CCM

 

Thank you very much!

[car2403]

Yes, congrats on the promo! But, the ICO worked for me on 2 accs. so wouldn't dismiss them completely. They can only assist with Data Protection and SAR's , not CCA's under the Data Protection.

 

Cheers!

 

I wouldn't dismiss them neither, I just have very low expectations given personal experience, that's all.

[car2403]

Isn't this the one where we said they ask for this info, then send the response in a few days anyway? (Subbed to too many threads, so sorry if I'm duplicating...)

[car2403]

Hi Creditcamug

 

Thanks for the reply, Can i try for a strike out instead of it being stayed.

Since the Claiment has not issued documents for the case.

 

Gaz

 

Which documents?

 

They have issued a claim and you've defended it in full - the Court notifies them of that Defence, then gives them 28 days to inform the Court as to how they intend to continue. If they don't reply within 28 days, the Claim will be stayed indefinitely and they have to make an application to have the stay lifted (and explain why they didn't respond within 28 days - it's unfair to have a claim hanging over a Defendant any longer, so it's unlikely a stay will be lifted without a very good reason) should they so wish.

 

I'm not clear what you're asking, Gaz, but it's a "sit and wait" game, I'm afraid.

[car2403]

It would also help if we split the 2 claims in to different threads - I can do that, if you can tell me which post numbers (each post has a number, showing as, for example, this one is #531 at the top of each post) so I can move them to a new thread. That way, the 2 claims won't be mixed up, unintentionally? If you PM me with the post numbers that need moving, I'll sort that out for you.

 

Just a thought...

[car2403]

Gaz, posts moved as requested. I've also copied the posts that mentioned both claims, so hope that's ok. I think everyone subbed to both threads should now see both, but here's the links to the other thread anyway;

http://www.consumeractiongroup.co.uk/forum/legal-issues/197454-gazza112-abbey-mbna.html

 

Let me know if any of it is wrong...