All MBNA Caggers Fight Against MBNA's underhand tactics

[angmarie]

Hi all

 

Any advice would be appreciated on this query please, im refering back to my MBNA agreement which i posted up on here but its almost unreadable once scanned and posted. Having read through various other threads here i have a couple of questions i need to clarify before i can make my decision going forwards.

 

1. The alleged is clearly an application form although it refers to credit agreement 1974, it clearly states if you accept our invitation complete app. form fold stick and return. Is an app. form allowed to double up as an agreement.

2. The second sheet T/C makes ref all over to conditions which simply are not included on these T/C, is that also allowed.

Somebody on this site has already advised me to just claim charges and that it would not be worth challenging the enforceability issue but im not really sure.

Please help me

 

 

Ang

[alisindebt]

OK, let's clear this up.

 

Firstly a true copy of the original means exactly that. they have not sent that to you and are therefore in default. Application forms are not CCAs.

 

Secondly, you need to weigh up the pros and cons of reclaiming charges compared to unenforceabiliity. For example, if recalimed charged would write off the debt, or most of it, then that would be the way to go.

 

If, however, there is still a substantial amount owing, then you could go down the unenforecability route. This does not mean, necessarily, that you go to court. Once you dispute the document, they cannot ask for payments or add interest. indeed, the onus is on them, not you, to prove a collectable deebt. let them get on with it.

 

send them this template, then its up to them what happens:

 

Account In Dispute

 

Dear Sir/Madam

 

Re: my request under s78 of the Consumer Credit Act 1974.

 

Thank you for your recent letter sent to me dated **DATE**, the contents of which are noted. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated **DATE**. Upon receipt of the original request the specified account legally entered into disputed status.

 

My request remains outstanding. The supplied documentation does not constitute a true copy of a credit agreement and that which you sent doesn't even contain all the prescribed terms and is not 'properly executed'. The statements sent do not correspond to the amount stated in your earliest correspondence and therefore they do not satisfy the requirement to supply me with a statement of account.

 

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until **12 days DATE** to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

 

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation. . You entered into a default on **12 Days DATE**

 

Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

 

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I would appreciate your due diligence in this matter.

 

I look forward to your reply.

 

Yours faithfully

 

Hi all

 

Any advice would be appreciated on this query please, im refering back to my MBNA agreement which i posted up on here but its almost unreadable once scanned and posted. Having read through various other threads here i have a couple of questions i need to clarify before i can make my decision going forwards.

 

1. The alleged is clearly an application form although it refers to credit agreement 1974, it clearly states if you accept our invitation complete app. form fold stick and return. Is an app. form allowed to double up as an agreement.

2. The second sheet T/C makes ref all over to conditions which simply are not included on these T/C, is that also allowed.

Somebody on this site has already advised me to just claim charges and that it would not be worth challenging the enforceability issue but im not really sure.

Please help me

 

 

Ang

[angmarie]

Hi Alis

 

I think for this one i will just out for charges as I think it will clear any debt still outstanding. Thank you for your advice and time you took to put your letter together, I will deffo use it 4 some other difficult cca's but this one is only for £500, so the charges route is prob best option in this case.

 

Thanks for your time

 

 

Ang x

[pawnbrokers]

alis, hope you wont mind if i copy this to my files, for use in cases just as you mention, i m working on my wife and her mothers credit cards, and im sure some of these may well fall into the catagory you describe, barclaycard for a one - thanks pb

[lexis200]

Firstly a true copy of the original means exactly that. they have not sent that to you and are therefore in default. Application forms are not CCAs.

 

Secondly, you need to weigh up the pros and cons of reclaiming charges compared to unenforceabiliity. For example, if recalimed charged would write off the debt, or most of it, then that would be the way to go.

 

If, however, there is still a substantial amount owing, then you could go down the unenforecability route. This does not mean, necessarily, that you go to court. Once you dispute the document, they cannot ask for payments or add interest. indeed, the onus is on them, not you, to prove a collectable deebt. let them get on with it.

 

They can send something other than the original - otherwise the Act would not bother saying that signatures etc can be omitted. Granted an application form will generally not suffice, but if that application form happens to have all the terms on it that would have been on one that you signed at the time, then that is enough for them to comply. It has to be the same in content to what you would have signed, so that you can see what you signed up to. They are not obliged to send something with your signature on it.

 

There are also application forms that become agreements upon execution. Now I believe there is some discussion going on as to whether this in itself would make it unenforceable (I don't know the intricacies of this so won't even attempt to explain it!), so I don't think it's a massive issue if you have one of these. Especially as they probably still won't have managed to get the prescribed terms on it!

 

Of course they can't claim an agreement's enforceable unless they turn up one with your sig and everything else in order, but seeing as compliance and enforceability are two different things they can have one without the other. It does always beg the question of why don't they just send the agreement. This could be the perfectly possible scenario that it's way back in the depths of their massive archives and will cost too much in time and money to retrieve, but in all honesty it does often point to them not having much in the way of an agreement. Be as sure as possible that it's the latter before having a little whoop round the front room when the rubbishy agreement plops on your mat though:)

 

Also, they shouldn't ask for payments etc, but it doesn't say anywhere in the Act that they mustn't - it's in the OFT guidelines that it's specifically mentioned. On the other hand there is nothing to say that you must pay if you are disputing the account. Again it's nothing solid and in black and white, but what's good for the goose...

[citizenB]

********** URGENT REQUEST **********

 

 

 

We badly need to get copies of letters from banks which claim not to hold data beyond 6 yrs.

 

 

The BEEB are very interested in doing an investigation on this but need some hard written evidence to kickstart the research.

 

 

If you are able to assist and feel unable to post your letters on the open forum. You are welcome to pm a copy to one of the site team. Please mark your PM .. Bankfodder - BBC - Data project.

 

Many thanks:)

[lexis200]

I have a few, I'll hunt them out.

[banker_rhymes_with]

Hello CB!

 

If you are able to assist and feel unable to post your letters on the open forum. You are welcome to pm a copy to one of the site team. Please mark your PM .. Bankfodder - BBC - Data project.

 

Is there a Thread on this? I'm aware of the Poll, but wondered if there was more to read?

 

TIA

 

Cheers,

BRW

[summerbreeze]

Hi All

Just wondering.

 

I just had a response to my SAR to MBNA and they did not include my CCA.

 

In a letter included with all the huge amount of paperwork they commented that they had already sent it in response to my s78 request some months ago.

 

Is this usual? I thought most people got a copy CCa in the SAR even if they had had one before from a s78 request .

 

Does anyone have a view on this ?

[the_shadow]

Hi All

Just wondering.

 

I just had a response to my SAR to MBNA and they did not include my CCA.

 

In a letter included with all the huge amount of paperwork they commented that they had already sent it in response to my s78 request some months ago.

 

Is this usual? I thought most people got a copy CCa in the SAR even if they had had one before from a s78 request .

 

Does anyone have a view on this ?

 

I suppose the key question is... did the s78 request actually get you the agreement?

 

If not then you can either make a complaint to the ICO about an incomplete SAR or a complaint to MBNA complaints dept (thats how I got my copy about 4 months ago)

 

S.

[summerbreeze]

I suppose the key question is... did the s78 request actually get you the agreement?

 

If not then you can either make a complaint to the ICO about an incomplete SAR or a complaint to MBNA complaints dept (thats how I got my copy about 4 months ago)

 

S.

 

Hi Shadow

 

Well they sent me an application form from the late 90's and a seperate sheet of alleged T and C .

I am 99% sure that what they sent me was not on the reverse of the App form and probably wouldnt be enforceable anyway.

 

It just seems strange to me that they didnt send it in the SAR

 

SB

[vint1954]

They can send something other than the original - otherwise the Act would not bother saying that signatures etc can be omitted. Granted an application form will generally not suffice, but if that application form happens to have all the terms on it that would have been on one that you signed at the time, then that is enough for them to comply. It has to be the same in content to what you would have signed, so that you can see what you signed up to. They are not obliged to send something with your signature on it.

 

You are correct Lexi, they do use this to get out of sending a copy of an executed agreement. I think that I have mentioned before, that the law relating to coppies was set up prior to the introduction of duplicating equipment. Copy agreements had to be written out by hand, hence no signatures.

There must also be an argument surrounding application forms, in that in general, these will always be deemed pre contractural documents and the CCA1974 refers to these. It also states that an agreement is executed, when both parties sign.

I think that the current trend by CCC's to supply a typed set of conditions, saying these were the terms at the time the agreement was signed, must be challenged. It may satisfy their twisting of the act, but I cannot see it standing up. The clear intention, is that they should supply a copy of the agreement, where the debtor is left in no doubt as to its authenticity. They do not supply this.

 

There are also application forms that become agreements upon execution. Now I believe there is some discussion going on as to whether this in itself would make it unenforceable (I don't know the intricacies of this so won't even attempt to explain it!), so I don't think it's a massive issue if you have one of these. Especially as they probably still won't have managed to get the prescribed terms on it!

 

Possibly, but I would suggest only where it is headed Credit agreement regulated by Consumer credit act 1974 and signed by both parties. The key word is headed, not tucked away in a signature box in small print.

 

Of course they can't claim an agreement's enforceable unless they turn up one with your sig and everything else in order, but seeing as compliance and enforceability are two different things they can have one without the other. It does always beg the question of why don't they just send the agreement. This could be the perfectly possible scenario that it's way back in the depths of their massive archives and will cost too much in time and money to retrieve, but in all honesty it does often point to them not having much in the way of an agreement. Be as sure as possible that it's the latter before having a little whoop round the front room when the rubbishy agreement plops on your mat though:)

 

As you say, they will need to provide the original at some point. I would say that this should also be in the SAR pack.

When I have previously pressed for an agreement under CPR, they have ignored. I would imagine that they do not have them.

 

Also, they shouldn't ask for payments etc, but it doesn't say anywhere in the Act that they mustn't - it's in the OFT guidelines that it's specifically mentioned. On the other hand there is nothing to say that you must pay if you are disputing the account. Again it's nothing solid and in black and white, but what's good for the goose...

 

Responses above.

 

How are your cases going Lexis?

 

Vint

[lexis200]

Hi Vint:)

 

As always you have very good points! I've done the same as you and requested for all accounts of mine and OH's under the CCA and an SAR, along with follow up letters etc. On a couple (BOS) who tried to threaten court action on the basis of the toilet paper they sent me in lieu of an agreement I also CPR'd them. I have not had anything better from any creditor.

 

As you say, if they don't send them for SAR/CPR, you could probably assume that they don't have them. If though it gets to court after doing all this and they suddenly turn up with them, I think you'd have plenty of ammo to ask why they didn't materialise earlier.

 

I completely agree that they should not be allowed to get away with sending generic terms for a CCA request (indeed they can't just send current ones as we know, but this is frequently done under the guise of compliance). Trouble is all we can do if they have technically complied is complain and (if applicable) state it's unenforceable.

 

I think really it all needs a bit of a re-hash. It may well take them longer than 12 working days to search archives (seeing as it takes them 5 working days to acknowledge a complaint it's not a far fetched thought:rolleyes:). This could be a genuine reason for them not sending a proper doc out straight away. Personally I think the time limit should be raised - say the same time as for a SAR - but for that they must send you an actual copy, signatures and all. It would certainly clear things up for all parties, save on postage costs both ways, and be far less confusing!

 

All (but one!) of our creditors are currently pretty quiet at the moment. Some are still being paid for the time being, others we've stopped. It really has depended on who's the most trouble more than anything - if they annoy me they get cut off. Also though, we've had a pretty nasty time over the last few months with other things, so I'm limiting harassment from creditors by choosing my fights. All with unenforceable agreements will end up having payments stopped at some point as I am as sure as I can be that they have diddly squat.

 

I'm also about to start on a different tack now and write to the CEO's and see if that has any positive effects. I'm doing timelines of letters and responses, limiting any emotional stuff and just relaying the facts. It makes pretty dire reading when you see how they behave over a prolonged period. I dare say it was have as little effect as everything else, but I'm still interested to see what happens:)

 

Are you having any luck at the moment?

[Monkeykiwi]

Please can someone have a look at the agreement I received on the link below? I am desperate for anything I can say is 'incomplete' on this because MBNA are issuing a DN and then 'selling it on'.

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/214157-monkeykiwi-mbna-virgin.html#post2354735

 

Many thanks in advance ...

[lexis200]

Hi monkeykiwi

 

Unfortunately with MBNA it seems common that if you don't pay them what they want when they want it, they will default you after 7 months of non payment/paying less. Even if you do find the agreement is toot, unless you are paying them on the dot with the right amount they'll still default and sell it (probably to Debt Clear Recoveries, their in-house monkeys).

 

If they do go ahead and default you, make sure you keep the envelope! With my OH's they allowed 16 or 17 days, but they sent it 2nd class and when it arrived there was only 13 days left to remedy. It arrived before it should have according to the accepted times for 2nd class (4 working days) as well, so if I went on that they'd be even further out!

[angmarie]

Hi all

 

Could anyone please comment on this please.

I have today received response letter from mbna, it returns my fee and says we are unable to send you a copy of your original signed agreement.

What does this mean unable or cant be bothered??

Shall i sent non-compliance of cca request to them or write and ask why not.

 

Ang

[Old Cogger]

Probably they have not got one, however hold on do not do anything yet, somebody with more knowledge will be along soon.

[Monkeykiwi]

Hi monkeykiwi

 

Unfortunately with MBNA it seems common that if you don't pay them what they want when they want it, they will default you after 7 months of non payment/paying less. Even if you do find the agreement is toot, unless you are paying them on the dot with the right amount they'll still default and sell it (probably to Debt Clear Recoveries, their in-house monkeys).

 

If they do go ahead and default you, make sure you keep the envelope! With my OH's they allowed 16 or 17 days, but they sent it 2nd class and when it arrived there was only 13 days left to remedy. It arrived before it should have according to the accepted times for 2nd class (4 working days) as well, so if I went on that they'd be even further out!

 

Thanks Lexis, good advice. I won't take offence at your reference to 'monkeys' in that context:D. Sorry to hear that things aren't great for you - I have noticed your posts on many threads, and you are always so supportive of everyone - I hope it all goes brilliantly for you. When I invent the magic wand, I'll send one your way!

 

MK

[Monkeykiwi]

Hi all

 

Could anyone please comment on this please.

I have today received response letter from mbna, it returns my fee and says we are unable to send you a copy of your original signed agreement.

What does this mean unable or cant be bothered??

Shall i sent non-compliance of cca request to them or write and ask why not.

 

Ang

Ang, did they give any reason or justification at all? Sometimes they say they can't because they can't verify your address or some such, but I haven't yet heard of anyone else having a letter simply stating they are unable without any form of justification... I am sure one of the many genius minds will be along to offer advice shortly. Sit tight!

[summerbreeze]

Hi all

 

Could anyone please comment on this please.

I have today received response letter from mbna, it returns my fee and says we are unable to send you a copy of your original signed agreement.

What does this mean unable or cant be bothered??

Shall i sent non-compliance of cca request to them or write and ask why not.

 

Ang

 

Hi Angmarie

 

They were also unable to send me a copy of one of my agreements when I sent a CCA request however they didnt return my fee.

 

I have since sent a SAR and they again responded that they were unable to provide a copy due to ' archive retrieval problems '

 

So I think they cant get it and therefore cant enforce it .

 

I think this is good news for you

 

SB

[AA99]

Hi All

Just wondering.

 

I just had a response to my SAR to MBNA and they did not include my CCA.

 

In a letter included with all the huge amount of paperwork they commented that they had already sent it in response to my s78 request some months ago.

 

Is this usual? I thought most people got a copy CCa in the SAR even if they had had one before from a s78 request .

 

Does anyone have a view on this ?

Normal for MBNA

 

Hi Vint:)

 

As always you have very good points! I've done the same as you and requested for all accounts of mine and OH's under the CCA and an SAR, along with follow up letters etc. On a couple (BOS) who tried to threaten court action on the basis of the toilet paper they sent me in lieu of an agreement I also CPR'd them. I have not had anything better from any creditor.

 

As you say, if they don't send them for SAR/CPR, you could probably assume that they don't have them. If though it gets to court after doing all this and they suddenly turn up with them, I think you'd have plenty of ammo to ask why they didn't materialise earlier.

 

I completely agree that they should not be allowed to get away with sending generic terms for a CCA request (indeed they can't just send current ones as we know, but this is frequently done under the guise of compliance). Trouble is all we can do if they have technically complied is complain and (if applicable) state it's unenforceable.

 

I think really it all needs a bit of a re-hash. It may well take them longer than 12 working days to search archives (seeing as it takes them 5 working days to acknowledge a complaint it's not a far fetched thought:rolleyes:). This could be a genuine reason for them not sending a proper doc out straight away. Personally I think the time limit should be raised - say the same time as for a SAR - but for that they must send you an actual copy, signatures and all. It would certainly clear things up for all parties, save on postage costs both ways, and be far less confusing!

 

All (but one!) of our creditors are currently pretty quiet at the moment. Some are still being paid for the time being, others we've stopped. It really has depended on who's the most trouble more than anything - if they annoy me they get cut off. Also though, we've had a pretty nasty time over the last few months with other things, so I'm limiting harassment from creditors by choosing my fights. All with unenforceable agreements will end up having payments stopped at some point as I am as sure as I can be that they have diddly squat.

 

I'm also about to start on a different tack now and write to the CEO's and see if that has any positive effects. I'm doing timelines of letters and responses, limiting any emotional stuff and just relaying the facts. It makes pretty dire reading when you see how they behave over a prolonged period. I dare say it was have as little effect as everything else, but I'm still interested to see what happens:)

 

Are you having any luck at the moment?

 

Very good idea, copy in your local MP too, we are not alone

[angmarie]

Monkey/Summer

 

No Justification or explanation, just I regret that we are unable to provide a copy of your original credit agreement....

However I did receive a cca from them last week for another account, which is basically an application form and they threw in some T/C for good measure. Probably not enforceable but the bal is £500 so not worth fighting about im going to get them on charges for this one:D.

What if anything do I do now still pay them, write to them asking when could they send it to me, or sit back do nothing.

 

 

Ang

[lexis200]

Monkeykiwi - hehe, sorry about the DCA/monkey reference, didn't even notice Thanks for the kind words:)

 

angmarie - I've seen this a few times around the site (regrettably not for any of mine!). If they've said they can't provide one though, as opposed to not being able to find it for the time being or similar, that is a nice letter to have.

 

I haven't got a letter myself as I appear to have lost my letters file:eek:, but there are tons knocking around for when they don't send anything at all. Essentially though if they can't find it they are in the brown stuff not only as far as your account goes but also with the Data Protection rules as they should not have 'lost' your agreement!

[summerbreeze]

Monkeykiwi - hehe, sorry about the DCA/monkey reference, didn't even notice Thanks for the kind words:)

 

angmarie - I've seen this a few times around the site (regrettably not for any of mine!). If they've said they can't provide one though, as opposed to not being able to find it for the time being or similar, that is a nice letter to have.

 

I haven't got a letter myself as I appear to have lost my letters file:eek:, but there are tons knocking around for when they don't send anything at all. Essentially though if they can't find it they are in the brown stuff not only as far as your account goes but also with the Data Protection rules as they should not have 'lost' your agreement!

 

Hi Lexis

 

What do you think about my other agreement where they sent a dodgy app form with seperate T and C [ with missing clauses in prescribed terms ] in response to s78 request.

But didnt send it in SAR and said we have already responded to your previous s78 request.

 

Do you think they regard the SAR as more legally binding than the s78 request and therefore dont send anything dodgy or cobbled together ?

[vint1954]

Hi Lexis,

 

As you say, if they did have a compliant agreement, then I think that they would have sent them after all these months.

 

I have just countered the agreements as the reconstructions or fakes arrived, only 3 in my case, with the OFT text below.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I think that one of the real problems is, that we all assume we are dealing with inteligent beings when we write our arguments. Somehow, I do not think that that is the case. I am sure that the letters get filed or binned when dealing with the OC's collection staff. They don't understand the content and don't pass it on to someone who does.

I think that they beleive they are far more in tune with the Law and regulations than we are and behave accordingly. How wrong they are. They seem to have a set computorised process to follow and do not deviate. It is not until you get to the DC or solicitor stage that someone takes notice, hopefully.

Mine have gone fairly quiet at the moment. Just respond to each Template letter that arrives, pointing out how wrong they are, but it falls on stoney ground.

You are quite correct regarding the timeline of threats. Not good reading. It does not seem to matter how good a customer you were!

My next tack is OFT, TS and MP. Just to keep poking them with a sharp stick.

Vint