Arrow/reston claimform - old MBNA card 'debt'

[rondodiver]

Rondodiver

 

They sure have. It wnt from 19% to 34.5%. I then opted out of this rate and they said it would be 29% until paid off and then they will cancel the agreement.

 

So in reality I will never pay it off if I meet the minimum payment each month.

 

Was that this year or last, the reason I ask is that if it was this year it should have stayed at 19.4% when you opted out maybe worth checking.

[MBNASlayer(1)]

Thanks it was this year in about June. I queried it with them and they said that they were not prepared to budge.

 

Hence looking in to the enforceability of the agreement. If they want to play silly buggers then so will I.

[foolishgirl]

Well I had hoped to challenge MBNA without defaulting. Unfortunetely it has now got to the stage where I cant meet the minimum premium so I have cancelled the direct debit.

 

What should I do now? Should I contact MBNA and tell them I cant make the payment and see what they suggest?

 

 

NO, NO, NO! What do you think they'll suggest? Don't repay them??!! This is UK 2009, not lala land. You have already seen what they do to your interest rates when you cross them.

 

Did you send the account in dispute letter MBNSSlayer or the CPR31.16 request yet?

 

If not, you should seriously consider both now. If you stop paying they will default you anyway. If you stop paying on the basis that they have not provided proof of an enforceable agrement, it may put you on a stronger footing when it comes to legal action so the 'account in dispute' letter needs to go. Make sure you send it Rec. Del. & do not sign - print or use dig. sig.

 

They will, without doubt, take legal action eventually but as long as you are prepared to defend it, you can ignore the LBAs that come in between. However you MUST ensure you keep the DN AND THE ENVELOPE it comes in, noting the date your received it.

 

If you want to take the action to them i.e. get the agreement declared unenforecable by a court, you need to send the CPR letter.

 

Whatever you do, make sure you do not talk to them on the phone & keep any corresp.

 

BTW, have any unlawful charges (overlimits, late payment fees) been applied to this account that you haven't yet reclaimed? If so, keep mum as yet - they may include them in the sum on your DN which would then be rendered defective. Important when it comes to defending a POC.

[MBNASlayer(1)]

Foolish Girl

 

I have sent the account in dispute letter that you provided on this thread but not heard anything back yet.

 

I just thought that if I contacted them they may agree to freeze the interest and/or accept a lower monthly amount. This way I could gather all the information I need to take them to court to get the agreement deemed unenforceable whilst still stopping them from defaulting my credit file.

 

Would they not agree to freeze interest or a lower amount? My outgoings are genuienly higher than my income.

[foolishgirl]

I guess you could try it but don't expect much...:-|

[rondodiver]

Foolish Girl

 

I have sent the account in dispute letter that you provided on this thread but not heard anything back yet.

 

I just thought that if I contacted them they may agree to freeze the interest and/or accept a lower monthly amount. This way I could gather all the information I need to take them to court to get the agreement deemed unenforceable whilst still stopping them from defaulting my credit file.

 

Would they not agree to freeze interest or a lower amount? My outgoings are genuienly higher than my income.

 

You would have to prove by way of I&E before they would even consider it. I would also still challenge that interest rate as they are outside of the risk based repricing guidelines

[MAGDA]

Hi MBNASlayer, even if you are making reduced payments, there is no guarantee that they won't register a Default on your credit file anyway - I had a lot of accounts I had initially negotiated on and making reduced payments for, but they all showed as Defaults on my file. DCA's are laws unto themselves. Once you are unable to pay the full instalment on the account, you will probably find MBNA will offload it onto Cabot, or similar DCA.

 

The other thing is, taking the creditor to court to have an agreement declared unenforceable can backfire on you, so you need to be aware of that. Personally, I think it is better to wait until they take you to court and defend it, but that's something that you have to decide of course.

 

As pointed out by rondodiver, might be worth challenging the interest rate as well.

 

Good luck, Magda

[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.

[MBNASlayer(1)]

Magda/Vint/Foolish girl

 

Thank you for your advice.

 

I will try and have a sensible discussion with MBNA and see if they can sugest any solutions during this difficult time. I wont hold my breath though.

 

I have my own I&E spreadsheet that I use when conducting my financial affairs and it is now in the red. To be honest there are reasons for this such as leaving Uni with debt, wife being made redundant then becoming pregnant etc etc. I really should have addressed these issues at the time but foolishly when MBNA kept increasing my credit limit I used this as a way of keeping up with my financial obligations.

 

I don want any sympathy from MBNA I just want some assistance in helping resolve my problems.

 

We will see how I get on.

 

Thanks again.

[MAGDA]

Magda/Vint/Foolish girl

 

Thank you for your advice.

 

I will try and have a sensible discussion with MBNA and see if they can sugest any solutions during this difficult time. I wont hold my breath though.

 

I have my own I&E spreadsheet that I use when conducting my financial affairs and it is now in the red. To be honest there are reasons for this such as leaving Uni with debt, wife being made redundant then becoming pregnant etc etc. I really should have addressed these issues at the time but foolishly when MBNA kept increasing my credit limit I used this as a way of keeping up with my financial obligations.

 

You Weren't stupid, it's always easy to be wise after the event

 

I don want any sympathy from MBNA I just want some assistance in helping resolve my problems.

 

We will see how I get on.

 

Thanks again.

 

Hope you get the assistance you are looking for from MBNA, you can only try.

 

Magda

[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.

[MBNASlayer(1)]

Hi Guys

 

I have recieved a response from MBNA after i sent the account in dispute letter (kindly donated by Foolish girl in post #11).

 

I have attached the letter and the MBNA factsheet.

 

My question is what is my next move. I have not paid MBNA this month. Should I just wait and see what they do?

 

Thanks

 

Reply from MBNA-1.pdf

 

MBNA reply - 2.pdf

 

MBNA reply 3.pdf

[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

[MBNASlayer(1)]

Vint

 

Thanks that is truly brilliant as always.

 

Just a thought but eveyone who can still use their MBNA cards (I can not) should make a huge donation to this site then try and have the agreement deemed unenforceable.

 

Oh the irony of it. Can you imagine the staff at MBNA seeing all these donations to this site

[exchange]

If I had known at the start of this process what I know now I would have made a donation from all 5 disputed cards before I lost use of them!

I look forward to a day in the (near) future when I can make a donation without the use of credit.

[MBNASlayer(1)]

Exchange

 

+1

 

They will indeed be happy days

[MBNASlayer(1)]

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.

 

MBNA Letter.pdf

[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.

[MisterV]

This is an interesting thread, keep it going. Im way down the line and facing court but after reading this thread am now more convinced my CCA is unenforceable.

I have to decide in the next 24 hours whether to accept an offer to settle the account (Tomlin Order) or go to court and defend myself.

foolishgirl is a star , always clear and helpful comments.

What I need is a crystal ball

[foolishgirl]

Have you got a thread on this MisterV.

 

If you wish to settle, be careful with the content of Tomlin orders, in particular always ensure that the costs issue is covered or they could hit you that at a later date.

[MisterV]

http://www.consumeractiongroup.co.uk/forum/legal-issues/206015-mbna-optima-court-action.html

 

Hope ive copied that right

[MisterV]

Would appreciate your comments on the CCA

 

http://i370.photobucket.com/albums/oo147/martpammy/scan0001-1.jpg

 

http://i370.photobucket.com/albums/oo147/martpammy/scan0002-1.jpg

[foolishgirl]

Just read your thread MV - you're getting great advice from experienced CAGers. Take on board what they say about Tomlins!

 

IMO if you want to settle, draft out a F&F yourself, including all the points others have mentioned, send it back to them instead of the Tomlin & say that is all you will agree to & they have 7 days to respond.

[foolishgirl]

Re. copies of CCA - the copies you have posted are not too clear so difficult to see if enforceable, also is Page 2 a reverse of page 1 or just an MBNA copy & paste job?

 

MBNA/Optima have a history of dodgy agreements, possibly why they wish to settle.