Haggis v MBNA - Enforceable Agreement?

[haggis1984]

Was hoping someone here could tell me if this agreement is enforceable. Ive been told by the OFT that since this debt was bought by MBNA from HFC they dont have to provide the origninal agreement, just a 'true copy.' Does this mean that they need to provide a signed agreement?

 

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Thanks,

 

Haggis

[supasnooper]

Hi there,

 

Welcome to CAG, I'm sure you'll get some good advice here.

 

My opinion of the documentation you have posted is that it is unenforceable as I cannot see your signature on the documents.

 

To learn more on the enforcability of Consumer Credit Agreements, have a read of the following links (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

Consumer Credit Agreements

[haggis1984]

Thanks,

 

Already had a read through those links when I was browsing round earlier, and the impression I got was that this is unenforceable.

 

The reason I was asking was because there doesnt seem to be anything in this links about enforcfeabilty of unsigned CAs when a debt has been sold on.

 

I got the impression from the OFT that in this case a CA didnt have to be signed in order to be enforceable. Is this incorrect?

[supasnooper]

One of the prerequisites of an enforceable agreement is that the debtors signature must appear on the agreement.

 

You could send HFC and MBNA a Subject Access Request which will cost you £10 to each creditor to try to flush out the Consumer Credit Agreement or you could use CPR 31.16.

 

Have a read of the link below on CPR31.16 -

 

PT's 31.16 thread

and see the result -

 

** ORDER TO PRODUCE CCA CPR31.16 WIN ***

[haggis1984]

Ahh all this CPR31.16 stuff is beginning to make a bit of sense now. Just to make sure I understand - A creditor can choose not to provide the original agreement upon CCA request, just a true copy (which may be unenforceable), but they could pull the original agreement out the hat at a later date and screw me over. Gonna send that CPR31.16 this week, will update when I get a reply.

[haggis1984]

Another thought -

 

This account was originally with HFC Beneficial but they took it upon themselvves to sell this debt to MBNA (my account was up to date at that time with no late payments for a couple of years). Could I argue that as any agreement that may exist was entered into with HFC Beneficial, I have at no time given MBNA permission to process my personal information (with credit ref agencies etc)?

[supasnooper]

Referring to post #5 - yes you have understood the point.

 

Referring to post #6 - You would need to see the original T&C's supplied with the HFC agreement if there was a clause allowing future creditors being allowed to process your data.

[haggis1984]

Letters going out to both banks requesting CA under CPR31.16 and making formal compplaints regarding sharing my information. Will update with replys.

 

Thanks Supasnooper, youre a massive help

[angel_1]

hello everyone pls take a look at the below thread very interesting!

 

http://www.consumeractiongroup.co.uk/forum/mbna/204839-band-together-against-them.html

 

 

have a sunny day laters angel x:-)

[haggis1984]

Quick thought - should I send SARs out too or wait and see what they come back with from CPR letters?

[supasnooper]

If you can afford the £10.00 fee for each Subject Access Request to each creditor then go for it.

 

If you can't afford the fee, then just follow the route as advised by pt2537 in the CPR 31.16 thread.

[haggis1984]

Cool thanks, Ill get SARS out next week when I get paid.

[haggis1984]

Lol letter from MBNA stating they will issue a response by 21st July 2009.

 

Fingers crossed!

[haggis1984]

Just read through Smt's thread on the same issue - using CPR to obtain the CA. Pretty much resigned to having to go through court to resolve this. I was wondering if the fact I have withheld payments on this account since they defaulted on my CCA request could work againt me in court?

[supasnooper]

If you put the account into dispute because the creditor did not send an enforceable agreement or comply with your CCA request, then you have a right to withold payments.

[steven4064]

Coming back to the original post.

 

Under s78 of the CCA 1974 and associated regulations, they are required to provide a 'true copy'. However, this is not what you think it is - it is a document giving you the basic terms of the agreement, which in fact, they have done. The concept of a 'true copy' goes back to the 1840s when copies were made with quill pens and is certainly not an exact copy. (Having said that, in this day and age, you would though that making an exact copy on a photocopier was actually the simplest option, but apparently not )

 

What they have sent is a 'true copy' as far as the regulations are concerned but it is not enforceable because it deosn't have a signature on it. They are correct in that they do nt have to provide anyting else under s78 but they mpst certainly do if they want to take you to court, for example. No signature means no agreement means no case. End of.

[haggis1984]

Hi steven,

 

Doesnt a true copy have to contain the prescribed terms though? Dont think any of the prescribed terms are contained in the document above.

 

 

MBNA have replied to my SAR today. Sent back my cheque with a letter stating that they require 'positive identification' and example of which could be 'a driving liscence or passport which contains the main cardholder's signature'

 

If they dont have in their possession a credit agreement with my signature on it I dont believe they will have anything to compare my signature to. Am a bit paranoid they could just lift the signature of any ID I send and whack it on a credit agreement.

[Mydogsawestie]

Hi Haggis

 

I had MBNA do the Subj Access thing back to me see my posting which had some interesting info from supasnooper about this too

http://www.consumeractiongroup.co.uk/forum/mbna/203137-subject-access-mbna-debt.html

 

I submitted what they asked in the end only because I did not want any further stalling tactics they so like to continue with;) but posting #11 by supasnooper made interesting reading

[steven4064]

UNfortunately the dox are too small to read on my computer. You are right, a true copy should have the prescribed terms. For a credit card they are credit limit, minimum repayment terms and interest rate - I think they are on the 1st page but I can't tell for sure.

 

The DPA gives them the right to confirm your identity in any reasonable way they wish

[haggis1984]

Hi Haggis

 

I had MBNA do the Subj Access thing back to me see my posting which had some interesting info from supasnooper about this too

http://www.consumeractiongroup.co.uk/forum/mbna/203137-subject-access-mbna-debt.html

 

I submitted what they asked in the end only because I did not want any further stalling tactics they so like to continue with;) but posting #11 by supasnooper made interesting reading

 

Thanks, useful reading there ill be keeping an eye on your thread.

[haggis1984]

UNfortunately the dox are too small to read on my computer. You are right, a true copy should have the prescribed terms. For a credit card they are credit limit, minimum repayment terms and interest rate - I think they are on the 1st page but I can't tell for sure.

 

The DPA gives them the right to confirm your identity in any reasonable way they wish

 

It seems like its just a standard terms and conditions with 'Credit Agreement' written on the top.

 

'1a. We will choose your credit limit and tell you what it is.'

 

2b shows standard interest rates but Ive got no idea if those are the ones which are applicable on this account.

 

 

Had a letter from Global Vantedge this morning requesting payment of £25.00 arrears. Gonna send them the bemused letter Ive seen on a few other threads. Ill get another SAR out next week.

 

Still had no response from HFC to either CPR letter or SAR.

[haggis1984]

So I just got all my documents together ready to write the 'beumused letter' to Global Vantedge/Aegis who are pursuing the arrears on this account. The only adress on their letter is an adress in India. I called them to get a UK address and - they don't have one! Is it really reasonable to expect customers to write to an adress in India to resolve arrears on a UK account?!

[haggis1984]

A thought -

 

The ICO has found that even without a CA a lender can continue to process information with CRAs. Fair enough, but that information must still be accurate.

 

If a debt is in dispute the OFT states that charges and interest cant be added. Therefore, If a lender supplies information on a disputed debt to credit reference agencies which includes additional charges and interests the balance cannot be accurate - therefore a breach of DPA.

 

Have stuck that in a letter of complaint along with complaint about passing the account to DCA. ICO said to give them 21 days to respond before making a complaint to them.

[haggis1984]

Letter from MBNA today. Says that they do not hold a copy of my signed agreement but have requested it from HFC. Also says that they have supplied a true copy - the 'agreement' I started this thread with.

 

If they don't have in their possesion the original HFC agreement how can they possibly know that what they have sent me is a true copy?! Guidance notes I awas sent from the OFT:

 

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.

Although MBNA haven't said that no agreements exists, they have admitted that they don't have it. So I'd think that the passage above applies?

 

So now as they are admitting they dont have the agreement my CPR and SA reqs are pretty useless.

 

Waht do I do now?

Edited July 8, 2009 by haggis1984
Adding OFT guidance

[supasnooper]

If you have not put the account into dispute, then do so immediately.

 

Make sure you follow the CPR 31.16 procedure to the letter.

 

Mark on a calendar the 40 days for SAR compliance. If they do not comply, complain to the Information Commissioners Office and send a Letter Before Action to the creditor