MBNA sold to Experto - no CCA

[MeeBroke]

I too just got an email?

 

 

I love how the email says that you can not reply to it and have to ring instead. Ooooh, that'd be too much like putting something in writing!

 

This behaviour is so blatently criminal it is trully shocking.

[LB145]

There was something on GMTV this week with Martin Lewis about Credit Card Interest Rate Hiking - apparently there was agreement with the Government that they could not just hike people up because they were regarded as bad risk and no longer pass their credit scoring - I never heard about this before - where were they when we all needed them - mine got increased to 34.9%???

[exchange]

It's true but only if you agree to not using the card again, only repaying the balance which in my case is simple as they have removed any credit facility anyway!

[vint1954]

Yesterday received a letter from Virgin with my SAR request info (originally requested 15th June 09) rather strange as this information was sent previously with my MBNA package (are they now separating them again?) same copy of "tear off application form" - still not sure if an application form is regarded as CCA Agreement?

 

http://i713.photobucket.com/albums/w...y09Blanked.jpg

http://i713.photobucket.com/albums/w...y09Blanked.jpg

Another hopeless attempt LB

[vint1954]

Perhaps they found it under the photocopier when they were vacuuming. All I know is that I suddenly got it from them yesterday. Today they have called me on my home number, mobile and work numbers. They have also emailed me!!

 

I had not had a call from them in months and have never had an email.

You may laugh, back in the early 80's, I purchaced an expensive HiFi, with 10% deposit the rest as a loan with Lloyds Bowmaker by monthly standing order. Heard nothing for 3 years no standing orders taken etc. Then a sheepish manager turned up at my business premisses, which were next door to Lloyds Bowmaker, appologising profusely saying that the agreement had fallen behind a filing cabinet, would I concider signing a new agreement. I was doing ok by then, so just paid him.

 

It does happen.

[vint1954]

There was something on GMTV this week with Martin Lewis about Credit Card Interest Rate Hiking - apparently there was agreement with the Government that they could not just hike people up because they were regarded as bad risk and no longer pass their credit scoring - I never heard about this before - where were they when we all needed them - mine got increased to 34.9%???

They used to try that all the time. If you questioned it, then they would usually drop it again.

[LB145]

Just been clearing the kitchen sides and found two bits of paper on top of the recycling pile - looks like junk mail - a piece of card folded in half and held together with two glue dots - MBNA have sent an "exclusive opportunity" if I make a payment up to Maximum of £900 they will equal this amount provided that it is done by 28th September 2009 - in the small print it states "Although this will be deducted off your balance, the refund value of this opportunity will consist of interest and fees, but will still be taken off your balance (up to the maximum amount specified)" etc.

 

This document was not sealed just held together with glue dots which can be closed again without anyone knowing that it has been looked at and it shows my account number quite clearly.

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAExclusiveoppounity.jpg

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAExclusiveoppounity2.jpg

 

My husband also got one if a payment of up to £1500 is made then they will match it.

 

Any views and comments?

 

Also - picked up the mobile too quickly without thinking head on and it was Kev from MBNA - telling me that I am ignoring his calls and that I have had my CCA agreement therefore account no longer in dispute!

[LB145]

Still unclear - is an Application Form regarded as a Signed CCA?

[vint1954]

Just been clearing the kitchen sides and found two bits of paper on top of the recycling pile - looks like junk mail - a piece of card folded in half and held together with two glue dots - MBNA have sent an "exclusive opportunity" if I make a payment up to Maximum of £900 they will equal this amount provided that it is done by 28th September 2009 - in the small print it states "Although this will be deducted off your balance, the refund value of this opportunity will consist of interest and fees, but will still be taken off your balance (up to the maximum amount specified)" etc.

 

This document was not sealed just held together with glue dots which can be closed again without anyone knowing that it has been looked at and it shows my account number quite clearly.

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAExclusiveoppounity.jpg

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAExclusiveoppounity2.jpg

 

My husband also got one if a payment of up to £1500 is made then they will match it.

 

Any views and comments?

 

Also - picked up the mobile too quickly without thinking head on and it was Kev from MBNA - telling me that I am ignoring his calls and that I have had my CCA agreement therefore account no longer in dispute!

Quite a few of these going around LB

[vint1954]

Still unclear - is an Application Form regarded as a Signed CCA?

The short answer is no. However, some judges do accept them as an agreement. You need to be prepared to prove otherwise.

[LB145]

The short answer is no. However, some judges do accept them as an agreement. You need to be prepared to prove otherwise.

 

In what way Vint? Do I need to send a letter about the Application Form not being "THE CCA"?

[vint1954]

In what way Vint? Do I need to send a letter about the Application Form not being "THE CCA"?

There is a lot on the forum, regarding application forms. To my way of thinking, they are pre-contract documents. Relying on an application form as an agreement, has been common practice for many years, by lazy creditors who should have followed up with an agreement to be signed, but did not. They are now reaping the concequences of these actions. The CCA 1974, clearly talks about when the executed agreement should be sent.

 

1. An application form without a clear heding is just that.

 

2. An Application form clearly headed, this is a credit agreement regulated by........, leaves to situation open to debate and interpretation by a Judge.

 

3. I cannot recall there being a test case in the High Court in order to set presidents.

 

You need to build a strong enough argument to convince a Judge of your side of the argument.

 

Also there is much disagreement on the forum, regarding the position of the signature on the document. Some argue that the 4 corners are front and back. I have never been totaly convinced about that point. I beleive that the signature should be on the same page as the prescribed terms. See below.

 

Quote:In relation to position of Signatures and Prescribed T&C

It is clear that s61(1)(a) is referring to the prospective regulated agreement, so that its requirements must be fulfilled by that document and not just by another document to which it refers”: Goode, Consumer Credit Law and Practice, paras 30.102-30.103.

 

This is interpreted by John McCloud, PhD, LLB, Barrister, Professor of Law, University of Liverpool:

 

On the same side as the signatures the document itself must contain the terms prescribed in the Agreement Regulations [Reg 6(1)]. To the extent that these rules refer to information which must be stated ‘together and as a whole’, that will ensure the larger list is included in the actual agreement rather than any document referred to in it.

[LB145]

So do you think I should ignore them or send one of your wonderful creations regarding the fact that they are application forms

[vint1954]

Hi Lb, Creation? do you mean flowing pros.

 

Just remind me, this application, did we find even a glimmer of a prescribed term.

[LB145]

Creation - meaning your brilliantly worded, informative letters - everything my brain wants to say but can't pen!

 

MBNA 1 (Mine) copy of application form - we previously sent them a letter about reconstruction but that was some time ago

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAAplicationFormSide1July09Blanke.jpg

 

Virgin (MBNA) Recently sent another copy of the Application Form - they said this was for my SAR request came on Virgin headed and not on MBNA as previously they were combining them.

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/VirginCreditReplySide1July09Blanked.jpg

http://i713.photobucket.com/albums/ww132/Diamond40_photo/VirginCreditReplySide2July09.jpg

 

And the biggie MBNA 2 (Husbands) thought they never had but came the other week - I did check out the freepost bar - mentioned previously and this was and is still live

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAApplicatinFormAct2Page2001.jpg

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAApplicatinFormAct2Page1of2.jpg

[vint1954]

Have had a quick read through again. We have put all of the accounts in dispute, however if you feel moved to poke them in the ribs with a sharp stick:

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible application form, devoid of all prescribed terms and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

What is a true copy:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“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 also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

[LB145]

Thanks Vint! I had a look at your threads earlier - are you coming to the end yet or can you at least see it looming? My husband keps saying "how long does this go on for and where are we going to be in 12 months? Thought I would start preparing for settlement figures (rosy tinted glasses on again) and anonymously spoke to my mortgage company - as we have equity (I know drawing on this in previous years was crazy) but feel there is no other way out - was told a defiante no - completely clear crdit history for at least 12 months!!! So I have written to the Head of of The Abbey asking him "where do people like us now turn? self employed - affected by the financial crisis - not wanting to or able to go to other mortgage /loan companies - do not want extortionate interest rates but want to settle up our financial disasters. Waiting for a reply.

[vint1954]

My 3 situations are still continuing. Reached a stage with all 3 where it is a bit of a stalemete. " cannot provide agreements, one just an appication form. All have issued DN's, all faulty.

 

2 have basically terminated, so I have accepted ther unlawful rescission.

 

MBNA have now admitted that only Terms and Conditions were sent and they are looking for the agreement.

 

It is frustrating, but has been going on for 7 months now. I think that you need to realise that there is no quick fix. I have seen threads still going on after 3 years.

 

It is dificult regarding future finance, especially if you need it for business purposes. I am just looking at ways of removing defaults and adverse listings. Two paths on that one. I will let you know if successful.

[LB145]

Update - sorry to anyone following this thread - have had a couple of real hectic weeks - good from a work point of view but not enough hours in the day to do everything - and the money is allocated before it even arrives on the mat!

 

Received a 3 page response from MBNA regarding Acct 1 - se below basicaly they consider the application form to be adequate as an agreement. Phone calls are still constant.

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAResponseOct1of3.jpg

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAResponseOct2of3.jpg

 

 

 

 

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAResponseOct3of3.jpg

Edited October 14, 2009 by LB145
Last page input again

[vint1954]

You need to go back to them, reminding them that an application form is just that and this one is devoid of all prescribed terms and is illegible and that your comments in your last letter stand. Head this letter official complaint.

 

Also tell them that written communication is not a request but a demsand.

 

Also ask them for your written authority under the Data Protection Act 1998, from you as the data subject, for them to hold and process information about you.

 

Cant open the last page

[LB145]

Cheers Vint, last page is now available to view.

 

MBNA Account 2 (husbands) in post this morning - card to say that they will be calling this week - did not say who "they" were - telephoned the number and the MBNA lady was really aggressive in her tone - had to end conversation!

[exchange]

Post card is a common tactic and had the desired effect in that you called them. If you look carefully there details are printed in the centre. When they say they are 'calling' they mean a phone call, not that they are going to visit you. We have all had these in the past and they should be ignored. My advice is never call them again or ever answer the phone to them. Insist everything is in writing. They will still call!

Exchange

[LB145]

Forgot to mention also a leter arived for MBNA Act 2 (husbands) another copy of Application Form and T&C's etc. This account is 100% MBNA nothing to do with Virgin at all but the letter heading is Virgin - complete incompetence!!!

[vint1954]

Cheers Vint, last page is now available to view.

 

Sorry, should have said, I altered the address and was able to view.

 

MBNA Account 2 (husbands) in post this morning - card to say that they will be calling this week - did not say who "they" were - telephoned the number and the MBNA lady was really aggressive in her tone - had to end conversation!

 

And finally.

don't speak to them on the phone

[vint1954]

Post card is a common tactic and had the desired effect in that you called them. If you look carefully there details are printed in the centre. When they say they are 'calling' they mean a phone call, not that they are going to visit you. We have all had these in the past and they should be ignored. My advice is never call them again or ever answer the phone to them. Insist everything is in writing. They will still call!

Exchange

Nice pictures though