Muffintop v mbna

[offy]

subscribed to this one, great info to read up on thanks guys.

[Muffintop]

Hello Muffintop!

 

Thanks for the PM.

 

Sorry, I'm not sure what you mean by Cheques? Are these the Credit Card Cheques that MBNA like to send, i.e. that you can use to Pay for items via Credit Card Cheque (usually with a nasty Card Handling Fee added by the way).

 

Or are these Cheques something else?

 

Assuming they are Credit Card Cheques, I'd say just bin them, as it may not be wise to use an alleged Account that is in dispute.

 

If MBNA are dull enough to cash them, all well and good, but I suspect they'll probably bounce them. They did that to me a while back, when there was sufficient cleared balance to cover them...and the Account was not in dispute at that time.

 

So, beware, MBNA don't always honour Credit Card Cheques even when there is no obvious reason not to do so. Using them on an alleged Account that is already in Dispute could just complicate things, and may well embarrass you if they bounce the Cheque anyway.

 

If I have the wrong end of the stick, let me know, as I may not be talking about the Cheques that you mean.

 

 

 

Nothing like that exists that I am aware of. Any lender with any sense who lends money based upon a Written Agreement/Contract would need their head examining to Scan and then Destroy that Written Agreement whilst the facility is still live and money is still owed to them.

 

This is plain common sense, and goes back through the Centuries.

 

It is only comparatively recently that banks have elected to Scan and then Shred Agreements, mainly because they were so dull, greedy and stupid (pick any three) that they never thought these Agreements would be challenged.

 

The bankers never imagined there would be a Peasants Revolt, and never saw the Internet coming, let alone highly active and intelligent Consumer groups such as CAG.

 

The bankers have been caught with their trousers down, and they really do not like it. They are trying every trick in the book to get out of this, but the fact remains that shredding a live Written Agreement, and especially a live Statutory Document such as a live Regulated Credit Card Agreement, was never a wise move.

 

But banks have deep, deep, deep pockets, and great influence over our weak and indulgent self-serving politicians, hence the watering down of the Consumer Credit Act in 2006. That remains a disgrace, and many of the changes were almost certainly made because of bank pressure on the politicians.

 

However, key areas of the Act, such as s127(3) were not repealed on a retrospective basis, so any and all Regulated Written Agreements made after the Consumer Credit Act 1974 (from the mid 1980s onwards to be precise) and prior to the Consumer Credit Act 2006 are still covered by s127(3).

 

This is why the bankers are so keen to say what would've been on the back of many Application Forms, because they neglected to put the Prescribed Terms were they belonged, i.e. in plain sight within the Signature Page. Indeed, many bankers didn't put anything on the back of Application Forms or, if anything was there, they often failed to include the Prescribed Terms.

 

You must appreciate that by shredding the evidence, that destroys any concrete proof as to what was, or was not, on the rear of many Application Forms. Strange as that may seem, the bankers much prefer that, because it removes the evidence of what was not there, making it harder for the Consumer to prove a negative (not that we should have to).

 

However, any reasonable and fair minded Judge should base their decision on the evidence, and the primary evidence in relation to an Account based upon a Written Agreement is, you've guessed it, the Original Written Agreement!

 

Without that, a Judge should throw any bank Claim straight out of the nearest window. But many Judges are neither reasonable nor fair, so it's essential that you must prepare any Defence so that you steer a troublesome Judge in the right direction.

 

That task starts with the way you communicate with your banker. Draft every letter with the Court in mind, and make sure that at every step you make it clear that you want to see some evidence that the bank has an Original Copy of a properly executed Regulated Credit Card Agreement (or just Regulated Credit Agreement etc if not a Credit Card).

 

If after trying to get to the bottom of what they do have via s77-79 and via Subject Access Request, and the bank continues to play coy, then perhaps just come straight out and ask them to inspect it?

 

If they refuse that, then consider a CPR 31.16 Request (there are cost risks). That Request can be made before any Court Action, but read this Thread, as it discusses CPR 31.16 in some detail:

 

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

 

If the bank refuses that, then add that to your bundle of letters that you will use to steer a Judge towards making the right decision.

 

When the bank issue a Court Claim, then go straight in with a CPR 31.14 Request and say you wish to make a Physical Inspection. See this Thread, as it covers this very well:

 

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

 

The point of the above, is that it shows you have made every effort to get to the bottom of what the bank has, and in most cases, the bank will not let you see what they have.

 

This will give the bank a major headache in Court, because there is a CPR Practice Direction that covers the need for the Original Agreements to be brought to Court (CPR PD 16 7.3).

 

Having set the stage, you can then go in hard on the issues of s127(3), and highlight all the Case History that makes it clear that without the Prescribed Terms contained within the four corners of the Original Agreement, the Court cannot Enforce.

 

At this point, the bank will only have a limp copy of an Application Form, and unless they can convince the Judge this would've had the key Prescribed Terms on the back of it, their Donkey should be filleted, as PT2537 likes to say.

 

But if you head into Court without a good solid Defence built around all of the above, then you will be at the mercy of the Judge Lottery more than is necessary. If the bank produce a slick Barrister, and a wad of Witness Statements from banking Big Wigs who are prepared to swear blind what was on the rear of the Application Form (even though they probably had no involvement and no actual idea, as underdog has just pointed out), then that weight of steaming horse manure might just impress a bank biased Judge.

 

You may now see the problem with copy Agreements, and why the banks actually like them when they know the Originals were not as water tight as they would like. You can fight this, but you must not underestimate the task.

 

I hope this helps.

 

Cheers,

BRW

 

Banker your replies are amazing thanks so much as always, they have sent credit card cheques.. I just think that they could be used to put money into personal accounts even if it was just to pay them off if they came up with valid cca at some point, but cant help but think there must be something illegal about using the cheques whilst the account in dispute? think you may think this way also.... what though if you had another account with them that wasnt in dispute at this moment in time and you used available credit on this, continued to pay them and maybe in 6 months applied for your cca and then they couldnt produce it, what then??

[banker_rhymes_with]

Hello Muffintop!

 

I'd steer clear of them if they are Credit Card Cheques, as they usually add a Handling Fee if you use them, and I bet the Interest Rate they charge may be higher than for other Purchases.

 

Watch out, also, for any Right to Offset, i.e. make sure you don't have a Positive Balance in any other Accounts with a bank you are having a dispute with.

 

i.e. if you have Account A that is in dispute and they say you owe them 1k, and you also have another Account, Account B that has 2k in it, most banks will grab 1k from the 2nd Account.

 

My advice to anyone having an argument with one bank is to pull out all extra Cash from all Accounts with that bank and put them somewhere else.

 

I appreciate this may not be much use with MBNA, as any Accounts you have with them are all probably Debt Accounts like Credit Card and Loans.

 

But if you, say, were given a Loan PPI refund of 1k and that pushed a Loan Account into Credit by 1k...and you owed them 1k on a Credit Card, I bet that 1k would soon be grabbed back by them.

 

Cheers,

BRW

[Muffintop]

thanks hear where your coming from banker. iv two mbna accounts both credit cards one was paid off the other is already in dispute in relation to waiting for a valid cca... the 2nd had large available balance so have used it in all good intentions and will pay it until rate changes over to horrundus rate then see what happens from there....know what your saying about if have bank account ie with barclays and in dispute with barclays they could take from that account. happpppppy new year.

[SteveH2508]

Credit Card cheques are a snare and a delusion. They treat them as cash advances so you pay a fee to use them and an astronomical interest rate as well. Shred them!!

 

If you are disputing an account and not intending to pay towards that account - I would suggest that drawing a cheque against that account knowing this could leave you open to allegations of fraud or theft.

 

Don't go there!

[Muffintop]

thanks I cant help but think the same... Also asked a wise credit card mug the same via pm but he has asked me to ask question on my thread prob so everyone can view the answer...

Just sent off a SAR to mbna to see al the cards they have or havent.

[Muffintop]

New can of worms here but need some more views.

 

I asked this question at the beginning of my journey with MBNA.

If you have requested a CCA on an account you have never previously defaulted on and not received the true copy and have written to them and disputed the debt until they can come up with the goods, even if that is in court...

 

Can they put a charge on your property??

Now I would have said No as the debt is unenforceable unless they can proove otherwise, but there is a thread on Forum

by Buzby his post 6

Presume the worse MBNA

 

It suggests by Buzby that he is a victim of receiving a charge (ccj) on his property from an MBNA credit card dispute.. I cant get my head around how you can get a CCJ and never have any chance to defend yourself.... now Im concerned as we have substantial equity in our property and dont want to go down this route.. cant see it myself but can I have some feedback from wiser Caggers pse.

Muffintop

[Ragtaggeorge]

There is some new legislation on credit cards that means they can apply for a charging order once a CCJ has been issued even if the outcome is that you stick to an agreed payment schedule under the new rules, lenders will be able to apply for a charging order simply because a county court judgment has been issued, irrespective of whether or not a debtor is sticking to an agreed repayment schedule. If the debtor then falls into arrears with repayments, the creditor can immediately use the charging order to ask the court to force a sale of the debtor's home. Tribunals, Courts and Enforcement Act 2007 Tribunals, Courts and Enforcement Act 2007 (c. 15) Not sure exactly when all the parts become live perhaps you can do some digging. In any case no enforcement is possible when the account is in 77 - 79 dispute;¬) Thanks to the gruniad New law puts more struggling debtors at risk of repossession | Money | The Observer

Edited January 2, 2009 by Ragtaggeorge
Three men in a boat

[Muffintop]

Ragtaggeorge your so wise thanks

 

This prooves my thought process, if they havent got a cca that is enforceable then you cant get a ccj in relation to that debt which is in dispute.And in anycase you would be aware that there was a hearing for a ccj and would be able to defend it, in my case and many others with your defense that you have not had an enforceable cca.....

Muffintop

[Muffintop]

with thanks to Buzby for clarification of the situaiton

 

Re: presume the worst mbna

In answer to the above - the problem was I had rented out my property whilst I was abroad. On my return (which was actually the date the case called in court for the Inhibition order to apply) the court staff advised that because the return date was 5 days earlier, the order would be granted automatically as I had missed the date to challenge it.

 

On getting legal advice, I would have to have applied for 2 'Reponing Notes' which would recall the two actions, but I would have to have had paid over £1,400 in fees to achieve these in order to get back to the starting grid. Since the debt was 'only £1,800' it was the pragmatic approach to roll over and pay, because I could habe been in a much woese situation.

 

Their charge was recorded by the Land Registry even though they full fees were paid in full at their debt discharged. Imagine my considered annoyance that MBNA subsequently didn't arrange for the removal of the Inhibition order, which I only found some 9 tears later when I attempted to buy a different property.

 

The bottom line? If I could have challenged them, I most certainly would have, but my absence and the lack of information as to what was happening let the steamroller plough on regardless.

[underdog13]

Jack Straw has said these acts will not come into effect until they have been properly reviewed - whether he keeps his word remains to be seen...

[Ragtaggeorge]

Jack Straw has said these acts will not come into effect until they have been properly reviewed - whether he keeps his word remains to be seen...

 

 

Course not...just like they did not pass the legislation that allows them to keep information on every single contact you have with anyone else...but they have just slipped it through with only a slight murmour from the media or should that be the establishment club.

[sunflower99]

Hi Muffintop

You know those fresh defects i found on MBNA CCA concerning missing terms and conditions! on that part of my CCA which they imply is on the backWhen i did some more digging about that issue on other threads it seems that the beggers seem to have made some feeble attempt to cover themselves about this point!as they say in small italic writing (on side of that page they alledge is on back of agreement) that some terms that are not present on that page are enclosed in a seperate enclosed document!LOL Well that seperate document was clearly not part of my orignal agreeement as bourne out that those charges were set at £!2 which were not in force when card was taken out in 2002! and the ref to those numbers ie 3.5 and 3.6 for example are set out slightly different ie called 3c or something for example! So that more recent seperate document they are trying to bundle in with my application form clearly not anything to do with original agreement! and even better is the fact that i believe any CCAs drawn up before 2006 the consumer has a lot more legal protection against improperly executed or fudged up CCAs as courts if they stick to correct legal guidlines can not enforce CCAs drawn up before 2006 that do not have all the prescribed terms and conditions on same page!and that page has to be signed by both debtor and lender.So if MBNA are trying to pretend that seperate pages fromn different agreements with prescribed conditions make a agreement enforceable which were made before 2006 they are barking up the wrong tree! and even ones made after 2006 if improperly executed can still fight it but the fact is that pre2006 agreements the courts are if they stick tolegal guidlines are much more limited to what they can make enforceable! Just a shame thatin the case of any agreements made after 2006 the DCA can get away with a bit more and the crediter has to fight a lot harder to get the cca declared unenforceable.I beleive the banks put pressure on goverments to let them get away more with their improperly executed ccas in future but the fact still stands that this does not apply to agreements made before that law was passed in 2006:D

Edited January 3, 2009 by sunflower99

[Ragtaggeorge]

Quite right - I think there is a general priciple in law that legislation is not retroactive on contracts unless it specifically says so in the legislation and case law can not change it.

[sunflower99]

Quite right - I think there is a general priciple in law that legislation is not retroactive on contracts unless it specifically says so in the legislation and case law can not change it.

Hi Ragtaggeorge! Yes i breathed a sigh of relief when i got sent this unenforceable rubbish from MBNA and Crapital one!when i found out this was the case!

[Muffintop]

Sunflower, thanks for your continued support.

I am struggling to find the information you mention on the above thread, I wonder now that you can see where it is on your agreement can you spot it on mine?

 

quote. You know those fresh defects i found on MBNA CCA concerning missing terms and conditions! on that part of my CCA which they imply is on the backWhen i did some more digging about that issue on other threads it seems that the beggers seem to have made some feeble attempt to cover themselves about this point!as they say in small italic writing (on side of that page they alledge is on back of agreement) that some terms that are not present on that page are enclosed in a seperate enclosed document

 

Im also struggling to see the inconsistency you mention on your agreement I only have the tear off slip and the rest is a copy of terms and conditons they have just printed off and attached. the tear off slip is microfiche application form, the two documents do not match. can you take another look at my mbna agreement sent and see if you can see same on mine? does anyone know what year the 12.00 charge for missed payments came into force if it wasnt 2002.

 

http://i369.photobucket.com/albums/oo137/skeggs885/mbna/mbnasign2.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/mbna/mbnasign1.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/mbna/mbna1-1.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/mbna/mbna3.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/mbna/mbna4.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/mbna/mbna6.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/mbna/mbna7.jpg

[sunflower99]

Hi Muffintop

I am afraid i a am not able to read yours and i tried to rescan mine but they are not very legible at all and my eyes are not very good at reading them.Even on mine when i try to read the actual document with a pair of strong magnifying reading glasses in strong daylight it is still quite a struggle and took me a while!i suppose a lot MBNA CCAs are different.Still i suppose not being able to read it easily is anorther thing in my favour if anyone tries to make out this CCA enforceable as in regulations it says that CCAs must be reasonably legible!:DI am sorry i can not read yours ,i cant remember when the !£12 charges came into effect but was told it was well after 2002,i will have a trawl around and see if i cn find out sometime,I must say as the writing was barely legible it took me quite a while to come acros those misssing terms in mine and then to find that italic print on side of CCA with their feeble attempt to explain missing terms being on different document which even then did not match up to it.

[creditcardmug]

Hi all,

Reading through the posts it seems that people arent entirely clear regarding what you get from your CCA request, and what its significance would be in the event of a court claim.

 

If the "agreement" appears to be unenforceable, this can fall into one of two categories.

 

1. Irredeemably unenforceable (meaning a judge does not have the power to enforce it)

 

2. Enforceable only by court order.

 

In both cases, you would have to convince the judge in your defence of your position on it, i.e. using the relevant sections of the CCA, and case law.

 

Now if the creditor actually had a valid agreement, it seems sensible for him to send you a copy of it in response to your CCA request.

 

If he doesnt, and sends you a mish-mash of unconnected/cut and pasted documents, then this gives you an idea that he would be in difficulty in court, if this is all he had, (assuming you defended properly)

 

Now it costs the claimant money to bring a case (and even more money as the case progesses), so if his case was weak he may decide not to risk it, especially as you would also claim your costs.

 

What im getting at is that although the CCA request reply gives you a good idea of what the creditor may have against you in any subsequent court claim, thats all it does...claimants rarely serve a copy of the agreement with the claim so the first thing you would demand in your defence is a copy of said agreement (which COULD be quite different to whatever you got in your CCA request).

 

I hope this makes things a little clearer for you all.

[sunflower99]

Hi all,

Reading through the posts it seems that people arent entirely clear regarding what you get from your CCA request, and what its significance would be in the event of a court claim.

 

If the "agreement" appears to be unenforceable, this can fall into one of two categories.

 

1. Irredeemably unenforceable (meaning a judge does not have the power to enforce it)

 

2. Enforceable only by court order.

 

In both cases, you would have to convince the judge in your defence of your position on it, i.e. using the relevant sections of the CCA, and case law.

 

Now if the creditor actually had a valid agreement, it seems sensible for him to send you a copy of it in response to your CCA request.

 

If he doesnt, and sends you a mish-mash of unconnected/cut and pasted documents, then this gives you an idea that he would be in difficulty in court, if this is all he had, (assuming you defended properly)

 

Now it costs the claimant money to bring a case (and even more money as the case progesses), so if his case was weak he may decide not to risk it, especially as you would also claim your costs.

 

What im getting at is that although the CCA request reply gives you a good idea of what the creditor may have against you in any subsequent court claim, thats all it does...claimants rarely serve a copy of the agreement with the claim so the first thing you would demand in your defence is a copy of said agreement (which COULD be quite different to whatever you got in your CCA request).

 

I hope this makes things a little clearer for you all.

Thanks creditcardmug!

For advice and help in clearing up confusion!

[sunflower99]

Hi Muffintop!

I found my post from Hellhasnofury which states when £12 charges introduced!Apparently they were introduced in 2006 !

[Muffintop]

Sunflower/Anyone..

 

Had the magnifying glass to my two page application strip today as well after your comment. Where my signature strip is on my APPLICATON FORM MICROFICHE It says I have received a copy of and agree to be bound by the MBNA CREDITCARD TERMS AND CONDITIONS AND I UNDERSTAND THAT I AM RESPONSIBLE FOR PAYING ANY BALANCE DUE ON MY CREDIT CARD ACCOUNT.

 

Charges section 3

3b states if I break the agreement I must pay 25.00 each time a payment isnt received

 

Sunflower you state that the charges of 12.00 were not in effect in 2004? or do you mean the 12.00 charge was not present but the 25.00 was?

 

Obviosly I am more and more aware that I may have to prove why this is an unenforceable agreement in court, it doesnt have all the prescribed terms and conds and signature in all four corners of the doc, it does differ in font size, height and has some of the heading missing ie credit CARD agreement, and it appears to be a microfiche application form rather than an agreement BUT STILL IM GETTING COLD FEET AND DOUBTING MY ABILITY AND STRENGTH TO QUOTE WHAT I SHOULD TO A JUDGE.

 

Credit card mugs last post. does give me hope that there are too many inconsistencies in my personal situation and if MBNA wanted to clear this up without wasting court time and money they purely had to send me my original agreement as it should be, or allow me to go and view it following my request from their office.

 

quote

Now if the creditor actually had a valid agreement, it seems sensible for him to send you a copy of it in response to your CCA request.

 

If he doesnt, and sends you a mish-mash of unconnected/cut and pasted documents, then this gives you an idea that he would be in difficulty in court, if this is all he had, (assuming you defended properly)

 

 

 

Comments please.

Muffintop

Edited January 4, 2009 by Muffintop
quoted creditcardmugs post

[sunflower99]

Hi Muffintop

i am afraid i have not found an exact post recently that says when they were introduced but think i found one when trawling round threads in past but not always easy to rember when i saw it but Hellhasnofury seems to know for definite that £12 charges were recommended by OFt as being more reasonable e and i think most banks changed them to £12 in that year .i think £25 was the normal charge they charged for any credit agreements they made before 2006!Though dont take my word as gospel!I will post on Hellhasnofury thread and try and see if she can quote where she found this info.My cca agreement for MBNA which i posted was not a very good production as it is not very legible and impossible to read when scanned onto my MBNA thread,So it is not very easy to read at all.so dont think it would be much help to you.the only way i was properly able to pull it to pieces was copying some of the info from the front signed bit of application form to establish there were no prescribed terms and conditions on it to tie it up with what they alledge is on back and seperate bundle of papers.and then trawling through it with quite a struggle with strong reading glasses in a very good light but impossible to read it from computer scan and i have same difficulty with yours as well

[underdog13]

Seem to remember reading on another thread that the £12 charges came into effect around April 2006. Not certain though.....

[sunflower99]

Him Muffintop

i keep trying to look at both yours and my agreement with difficulty.But your first image of that short squat bit of paper which MBNA is slightly different from mine.Both your front and what MBNA alledge is on your back pages have difference in title yours say Credit Agreement on both front and back side of your pages.Mine though like yours is on two squat short bits of paper .My front signed bit of paper has a different title from what they alledge is on the back.The front paper states it is a credit agreementm with word card being missed out and the bit MBNA alledge which is back of mine says it is terms and conditions of Credit Card Agreement so.MY front signed page reads the incorrect wording Credit Agreement and the second page MBNAm implies is on back reads the correct title Credit Card terms and conditions i think yours read the incorrect title Credit Agreement on both sides.My page which MBNA alledges is on back of my application forrm has no charges stated on it yours reads that it has charges of £25 .Mine has wording on page which MBNA implies is on back of my agreement saying that missing terms are on a seperate enclosed document but the seperate enclosed document clearly has nothing to do with my agreement which states £12 charges apply as card taken out in 2002 before those charges introduced in 2006 .You do have seperate documents that state £12 so they are clearly current ts and cs but the only thing a bit worrying in your one is that they have stated charges of £25 on your page that MBNA alledges is on back of page of your cca so incorrect charges argument would not apply in your case as they would say that the correct charges are on back of your document and that as no reference has been made in your case to missing tems in an enclosed document which they have done on mine they would say that those extra bundls of terms were enclosed as current terms for your benefit on your CCA. but of course there is still a good chance that MBNA are getting crafty and makking sure that they only include documents that state charges current at time of card issue when they bundled in that page that they are implying is on back of page and no proof pages are connected or that there is any ref on front signed part to say that there are terms on back!so i personally think there is a good chance that MBNA are doing the same to you that they did to me but just getting more crafty but obvioulsy neither of us can be a hundred percent unless it goes to court and if that does you should get advice on here to make MBNA show original!

[sunflower99]

I hope my rambling post makes sense! I am not very good at concise posts!