Arrow/reston claimform - old MBNA card 'debt'

[vint1954]

I am sooooo confused. If I look at the document library for MBNA agreements it appears that an application form can be a valid CCA even if the T&C's are on the second page....assuming the T&C's were actually on the reverse of the document.

 

For it to be valid, the prescribed terms should come before the signature, or be referred to before the signature, but must always be bound within the 4 corners of the agreement. What they have sent you is a typical reconstruction, where they have microfiched the front page then probably shredded the agreement, or archived it in a salt mine.

 

My request under S78 CCA will not produce anything other than what they have supplied.

 

Correct

 

 

Foolishgirl has given you good advice, send her account in dispute letter. Whether you continue to pay while the dispute continues has to be up to you to decide, but Foolishgirl's letter is the next link in the chain.

If I go down the CPR route I could find that they do have a 'true copy'. If I default and they take me court my credit file will be screwed.

 

From experience they ignore the CPR 31.16 request as they ignore everything, so the threat of it will not work. If you want to find out if they have one, you will need to take them to court.

They will only default you if you stop paying them.

 

Oh what to do

 

What date was your agreement?

[vint1954]

l & then they would have no rights to default you at any time as there would be no agreement to prove that you had given your permission to share info.

And that is the crunch point:)

[vint1954]

I am still of the oppinion that if the prescribed terms are on page 2, then so should your signature be. All contracts are signed at the end.

[vint1954]

I agree but I think there have been cases where it has been judged acceptable if everything falls within 'the 4 corners'.

Your not wrong there. I think it just needs to be argued properly.

 

On one hand:

 

The case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 confirms that the prescribed terms must be within the agreement document itself and cannot be contained in a separate document and simply be referred to;

 

"33 In my judgment the objective of Schedule 6 [of the Agreement Regulations] 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 s61 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."

On the other hand:

From Consumer Law book by John Keith Mcleod , barrister, professor of law, 2002 Edition, that applies to agreements of this age.

To clarify concerning 61(a) of the CCA 1974:

 

This section clearly requires that a regulated agreement including a credit token agreement must comply with the following requirements;

 

1. it must be in the prescribed form as to the Agreement Regulations.

 

2. On the SAME side as the signatures, the document itself must contain the terms prescribed in the agreement regulations (reg 6(1)):

the credit limit, the rate of interest and a term stating how the financial obligations of the debtor is discharged and these must be stated together as a whole that will ensure that the larger list is included in the actual agreement rather than any document referred to in it.

The regulation makes it clear that the absence of these terms takes an agreement outside the dispensing power of the court.

 

Now to explain what S61(b) means:

 

The document embodies all the terms of the agreement, other than the implied terms.

 

This section requires that the regulated agreement contains or refers to all the express terms of the agreement ( NOT THE PRESCRIBED TERMS!!) the T&C's.

 

Now to go further:

 

This is called the required terms and it is these terms (and NOT the PRESCRIBED TERMS) that are what is referred to on the NON-SIGNATURE side (the reverse) this is to COMPLY with S.189(4) 'embodies' the terms required by the Agreement regulations so that they must either be in the agreement OR in adocument referred to in it.

 

So the PRESCRIBED TERMS MUST BE ON THE SAME SIDE AS THE SIGNATURES. If the agreement refers to anything 'overleaf' then it is referring to basically T&C's.

[vint1954]

FG

 

Even if the terms are on the back and are not referred to?

 

Do you have any links to cases where this has been the decision?

It is a topic of debate MBNAslayer,

 

I have posted both cases above. The question is what in the first case was meant by 4 corners, or was the term used inappropriately.

 

If you look at it logically, you may be presented with an agreement to sign on page one, where you were prevented or persuaded from seeing the reverse. If the signature was on the reverse, you would have to see both pages, so this is possibly the reason for the 4 corners term in that case.

[vint1954]

Has anybody seen MBNA's ISO accreditation document? How they are meant to handle documents.

[vint1954]

I have a similar 'agreement' and it mentions (I think yours is the same, MBNASlayer) that I have received a copy of the t&cs, or agree to them, something along those lines. According to Cabot who have been assigned my MBNA account, the T&Cs contained the prescribed terms (although they don't have the orignal ones, only the current t&cs) and although a separate document, this is covered by s189(4) "embodies a provision if the provision is set out either in the document itself, or a document referred to in it." If this was the case, they could get you to sign an 'agreement' and the prescribed terms could be in a document which is posted to you a month later, simply because it's mentioned, which obviously doesn't make sense at all. They push this point relentlessly, though haven't taken me to court yet.... Magda

the 1974 act requires that the prescribed terms must be within the agreement document and cannot be found anywhere else. See Francis Bennion. s189 refers to terms other than prescribed.

[vint1954]

Magda

 

Thanks for your comments.

 

S 189(4) does not refer to the issue you have mentioned so not sure what cabot are going on about.

They are trying to hoodwink you. A novel interpritation by them, but must try harder.

[vint1954]

Sections 61, 65 and 127 of the CCA 1974, and the recent binding decisions in the high court and court of appeal regarding the lack of prescribed terms in regulated consumer agreements. I refer the the cases of Wilson V FCT and Wilson V Hurstanger.

Both these BINDING judgements hold that if a regulated agreement is missing any prescribed terms, or if the terms are misstated then the agreement is irredeemably unenforceable.

In Wilson V Hurstanger it is stated that the prescribed terms should be within the signature document and not in any other document. I believe that the document sent to me with my signature on does not contain the prescribed terms and as such is unenforceable.

 

Perhaps Cabot is now a higher authority than the High Court or Court of appeal:D

[vint1954]

I have to agree with Magda. Unless you crave risk, it is better to let them take you to court and then defend.

 

I did supply an I&E form to MBNA and they refused reduced payments, even for a short period.

 

No reasoning to their descissons.

 

At least you are trying to resolve, if it ever gets to court.

[vint1954]

And there but for the grace of God go most of us.

 

The whole country has been built on credit for many years. I think it is fair to say that if most of us had not been subject to unforseen and sudden financial armageddon, then we would be paying the CCC's blissfuly unaware of their tactics.

 

They refused to accept reduced paymnents, even though I had been made redundant.

 

Just remember, that every person in this country, has just lent them £43,000 to keep them afloat.

[vint1954]

This is their latest attemt to convince people that they have an enforcable agreement.

 

What they have sent, probably does comply with s78. The fact now is that it is unenforcable under s127 (3).

 

I will post a response for you to look through.

 

Vint.

[vint1954]

This is their latest attemt to convince people that they have an enforcable agreement.

 

What they have sent, probably does comply with s78. The fact now is that it is unenforcable under s127 (3).

 

I will post a response for you to look through.

 

Vint.

 

Ref Account xxxxxxxxx.

 

Dear sirs,

 

I am in receipt of your letter dated xxxxxxxxx 2009 in further response to my request to you under section 77-79 of the Consumer Credit Act 1974. I remain surprised by its contents. No debt to you is acknowledged.

 

You have previously sent a reconstituted agreement devoid of all prescribed terms and a set of unrelated terms and conditions, in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, insisting now on several occasions, that these documents previously supplied were a True Copy of the executed agreement. This statement by you is binding on you as per section 172 of the Act.

 

Section 172 states:

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under-

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the documents that you have previously provided, are the only documents you may now rely on in any attempt at enforcing this alleged debt in the future.

 

I note that you have replied to the above by sending an Application Form & your Terms and conditions, including prescribed terms, in a separate document. I must inform you that this is not sufficient to comply with the request and that you are still in default under the act.

 

To clarify, just sending the Application Form & Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that your client may exclude, the copy must be a “true copy” of the agreement.

 

 

This breach of the agreement can be demonstrated as follows;

 

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

 

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions. It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

Turning to the application form that you have now additionally provided, this document contains none of the prescribed terms as laid out in the CCA 1974.

 

Referring to Sections 61, 65 and 127 of the CCA 1974, and the recent binding decisions in the high court and court of appeal regarding the lack of prescribed terms in regulated consumer agreements. I refer to the cases of Wilson V FCT and Wilson V Hurstanger.

 

Both these BINDING judgements hold that if a regulated agreement is missing any prescribed terms, or if the terms are misstated then the agreement is irredeemably unenforceable.

 

In Wilson V Hurstanger it is stated that the prescribed terms should be within the signature document and not in any other document. I believe that the document sent to me with my signature on does not contain the prescribed terms and as such is unenforceable.

 

Looking to Goode, Consumer Credit Law and Practice, paras 30.102-30.103.

 

 

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

 

 

This is Further 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.

 

I maintain that this alleged debt is completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading.

 

 

At the very least, an Agreement must contain the following within the signature document (on the same side) to be enforceable, even in court (see agreement Regulations 61(1)):

 

1. A credit limit or a statement as to how this will be determined.

2. An APR.

3. A schedule of repayments.

 

You are stating that the documents you have sent me, do comply with the CCA 1974 as an enforceable agreement. In that case, given the facts outlined previously, perhaps you could direct me to all of the prescribed and required terms in the “Application” you have sent me given the fact that these should be on the same page as the signature, I think you will find that they are not there.

 

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127. Again, I think you will find that this legislation does not exist.

 

I hope this explains why your and your clients reply was unacceptable and would remind you again that whilst the request has not been properly complied with the dispute continues.

 

Should you attempt litigation as you threaten, it will be vigorously defended and the failure to supply compliant documentation under the CCA 1974 is a complete defence to any legal action and your and your clients actions will be vexatious and unlawful.

 

I trust this outlines the situation

 

Yours sincerely

[vint1954]

Hi everyone. Hope you all had a great Christmas.

 

I recived the following reply from MBNA following the letter that Vint gave me in post #69.

 

What now? They state that as far as they are concerned the matter is closed and I have to pay any o/s amounts.

 

Thoughts would be greatly appreciated.

 

[ATTACH]15162[/ATTACH]

Well they would say that. You could make an official complaint to MBNA, regarding the unrelated terms and supplying an application form devoid of prescribed terms.

[vint1954]

the 2% is interest and principle. Bet that figure does not even cover interest now.

[vint1954]

It means your debt keeps getting bigger MSlayer!

Exactly. Not sure if that is acceptable business practice though.