MBNA - (Abbey & Virgin cards) CCA ??

[guzzleguts]

Hi

 

Posted these CCA's earlier but advised to do start a new thread for each creditor.

 

I would be grateful if anyone can advise if these are enforceable agreements

 

Many Thanks

 

VIRGIN CARD

 

 

ABBEY CARD

 

[creditcardmug]

The 1st scan isn't enforceable, the 2nd scan is it part of the 1st? theres nothing to say so!

 

3rd/4th, these two may be linked, the writing is too blurred to read, but may be enforceable by a court if they could prove the two are part of the same document.

[guzzleguts]

Thanks CCM for looking

Yes the 1st & 2nd Scan are part of the same.

3rd & 4th have been sent to me & photocopied on either side of a piece paper. Not sure if they are part of the same document as not aligned properly, but would appreciate any advice re this document

 

Thanks

Guz

[creditcardmug]

You say the 1st/2nd are part of the same, but i can see nothing on the 1st one to say where the terms can be found, so who is to say they are both part of the same document.

[RedVixen]

Hi I got a similar agreement to your scan 3 and 4 - the document number on mine don't match so they are not form the same document and for that reason I have been advised it probably isn't enforceable

 

I am not 100% on this as it hasn't been tested yet but someone else on here has had the same sort of agreement from MBNA looked at by a legal bod and they said it wasn't enforceable

[creditcardmug]

When does the abbey one date from? it could well be a cut/paste job, i havent seen any mbna type app forms that are enforceable on here.

[guzzleguts]

I guess they are suggesting its a fold over application which you send back to them??

But its still a application form!

i appreciate the help ccm

[guzzleguts]

Thanks ccm

dec/04

thanks red vixon

which no is doc no

[creditcardmug]

You see an app form can be an agreement , but the prescribed terms must be

"within the four corners of the document containing your signature, they cannot be found elsewhere"

[guzzleguts]

Thanks ccm

not even on the back

[creditcardmug]

Ah, now they can be on the back (if it says so on the front), and you would insist the original was brought into court, so the judge can see that they are indeed part of the same document.

[RedVixen]

Good question GG - none of the numbers at the bottom of the pages match

[guzzleguts]

Thanks ccm

very helpful

 

guz

[silverfox1961]

As i keep saying, I'm no expert but:

scan 1 dated 28/02/03

scan 2- in the right hand corner is what i think is a date-01/02. reasonable to link that with scan 1

scan 3. down the right hand side looks like another date, 04/04

scan 4 right hand corner, another date, 01/04

scan 3 and 4 could go together but not with 1 and 2.

that's just a guess but i think it's worth another look.

 

fox

[creditcardmug]

GG here is the bottom line on this, so make of it what you will, in some cases the judge has to make a decision on it.

 

13. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

14. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

15. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

16. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

17. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

18. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

[guzzleguts]

ccm

it doesnt say anything on the front about terms and cons being on the back

 

guz

[guzzleguts]

I would appreciate any other advice from anyone

thanks

guz

[guzzleguts]

bump!

[Josie8]

They can be on the back if there is clear linkage with the front page i.e reference made to them being on the back or consecutive page numbers etc.

 

Re the MBNA it may be well worth your while actually scrutinising what it says on the front & seeing if any reference to a particular condition eg is different on the back or to T's & C's applied. If it is I wouldn't point it out to the creditor at this stage - keep that info for court.

Edited November 20, 2008 by Josie8

[guzzleguts]

Thanks josie

[guzzleguts]

Not sure how i go about getting the right people to veiw this thread, has anyone seen cca's like these before.

need some help please.

thanks

guz

[creditcardmug]

gg, the only way you can get more people to read the thread is to keep bumping it, but did you read what i posted in post 15, this tells you all there is to know about this really.

[guzzleguts]

Thanks ccm, your info is great i was just trying to see if anyone had seen or had any joy with these sort of documents

thanks gg

[Josie8]

I've seen plenty and they are standard MBNA fare when they can actually produce an agreement.

 

Have they defaulted you yet?

[guzzleguts]

thanks josie

yes they have.

Do you mean they probley have valid cca if they send out documents like they have.

thanks guz