Cap1 & CCA return

[holley]

Hi all

 

I have now sent off 3 letters to MBNA

 

1. Copy of signed CCA (T & C only recieved)
   
2. Do not acknowledge ANY Debt (No reply)
   
3. This account is in dispute (Letter I got today)
   

This morning I received a letter from MBNA advising that my they had withdrew my credit line and will inform the credit reference agency of the arrears.

 

Loads of other nonsence about not being able to get a job or loan etc etc etc as it will be on my file for 6 years.

 

Then it goes on to tell me about a default notice and legal action will be taken or passed to a DCA.

 

I didn't think they were allowed to register anything with the credit agency?

 

If they haven't provided a true signed copy what are my next steps.

 

Thanks in advance

 

Scrapper

 

 

I have written to MBNA for a CCA so will be very interested in what some of the replies to you will be best of luck I shall keep an avid eye on this post!!

[car2403]

An agreement cannot be an agreement unless both parties agree to it ncf; therefore it follows that is one party terminated the agreement, that is it, the agreement is dead. So if that one party (or even the other party) then wanted to reinstate the agreement, they would both have to sign up to a new agreement. They couldn't just say 'OK let's forget we ever fell out (read terminated our agreement) & we'll just go on as before' You can't turn the clock back, you can only work with the present scenario.

 

We need caselaw to support this view

[Viscount Stair]

I'm tempted to suggest the old cop-out that it is "trite law".

 

But I agree that some authority needs to be identified. I'm not sure if there would be anything that specifically decides the point but it may be possible to construct an argument via the general law of contract under the heading of repudiatory breach.

[foolishgirl]

I agree with you Viscount - 'agreements' come under the general terms of 'law of contract' & there are probably lots of examples but many that do not pertain to credit agreements.

 

It is a huge subject in which I am not qualified. However as I understand it, a contract is an agreement with specific obligations (terms & conditions) that would be recognized by a court of law.

 

In general terms, in order for an agreement to exist there must be an offer & an acceptance. eg. when you take out your loan, CC etc. the offer is made by the creditor to grant you credit, you in turn accept & you both accept the T&Cs that come with it.

 

If the creditor (or you) decide to terminate that agreement, either by way of notice (as is usual in the T&Cs) or by default of payment, the agreement then usually falls void other than any arrangements made under the T&Cs to repay/collect the o/s balance on any credit supplied.

 

Perhaps one of the legal guys could come up with case law to define this principle?

[steven4064]

Normal contracts have clauses in them that cover termination. In the case of regulated agreements, such terms have to be in accordance with the CCA 1974 - normally requiring a valid default notice if the creditor wants to terminate.

 

The debtor can normally terminate a regulated agreement by paying what is owed and closing the account. In fact, for fixed sum agreements the agreement has to give the amount required to terminate the agreement at 1/4, 1/2 and 3/4 of the the term as examples.

[underdog13]

Normal contracts have clauses in them that cover termination. In the case of regulated agreements, such terms have to be in accordance with the CCA 1974 - normally requiring a valid default notice if the creditor wants to terminate.

 

The debtor can normally terminate a regulated agreement by paying what is owed and closing the account. In fact, for fixed sum agreements the agreement has to give the amount required to terminate the agreement at 1/4, 1/2 and 3/4 of the the term as examples.

 

None of my fixed sum agreements have ever quoted the amount required to terminate part way through the term - what bearing would that have on the validity of the contract? Would it affect it's enforcability or make it improperly executed?

[noomill060]

So for instance, a credit card company couldnt just unilaterally cancel your card after youve made a small claim, assuming your account wasnt defaulted before

[underdog13]

I've had credit cards cancelled simply because I didn't use them enough

[BlueSquirrel]

My HSBC account has just been "ended." I am in arrears but have not received a default notice, just a letter saying they have ended the agreement and can I pay the arrears. They haven't mentioned the whole o/s balance but presumably they want that back, although on what basis, since the agreement has ended??

[Viscount Stair]

None of my fixed sum agreements have ever quoted the amount required to terminate part way through the term - what bearing would that have on the validity of the contract? Would it affect it's enforcability or make it improperly executed?

If I recall correctly, that was one of the changes made in 2004/5. It doesn't help that the pre-2004 version of the Agreements Regs doesn't seem to be available anywhere.

 

Were the agreements taken out before 31 May 2005 or after?

[underdog13]

If I recall correctly, that was one of the changes made in 2004/5. It doesn't help that the pre-2004 version of the Agreements Regs doesn't seem to be available anywhere.

 

Were the agreements taken out before 31 May 2005 or after?

 

It was prior to May 2005; which explains the absence.

[amdmlivingstone]

Could someone here help me to see if this is enforceable and what my next steps are.

 

[car2403]

Whats the APR/rate of interest on that agreement, amdmlivingstone?

[amdmlivingstone]

That's the bit that they missed off!

[Viscount Stair]

No wonder. I put the figures into an online calculator and came up with an APR of 129.7% !

 

The early settlement figures look very peculiar too.

 

And as for the witness and creditor's signatory being by the same person ...

Edited January 27, 2009 by Viscount Stair
Follow up

[amdmlivingstone]

The witness was the agent and she also signed the agreement. What would my next steps be i.e. Should I take them to court and how do it do that?

[car2403]

The reason I asked about the APR is because I knew how high it would be - but didn't want to ask leading questions.

 

As this APR is so high, this is probably an unconscienable and extortionate bargain and a Judge would be unlikely to allow enforcement of the entire debt as a result. He would be more likely to say you were prejudiced by the agreement, as a result of the high interest rate, and that the agreement is unenforceable as a result.

 

The other reason I ask is that I too have a Provident loan that I was unable to repay. I offered payments that the local office couldn't accept, but the Agent was and still is a good friend of mine, who told me not to worry as the debts are passed to a Solicitor acting for PPC, who are instructed to accept anything that you offer which seems reasonable - the theory is that they've charged you so much in interest that allowing you extra time to repay the debt is better than having to write it off as it's assessed as unenforceable by a Court. As a result, I am currently paying £5 per month on a small outstanding balance - and I have done for the last 4 years.

 

There are other issues with the agreement, but I would personally follow the route I've outlined here before trying to have it declared unenforceable.

 

I can elaborate on the issues with it, but it may not be worth it, at this stage - you'd be better off having your own thread, too.

 

The witness was the agent and she also signed the agreement. What would my next steps be i.e. Should I take them to court and how do it do that?

 

There's no requirement under the CCA for an agreement to be "witnessed", so this won't effect the execution of the agreement.

[Viscount Stair]

I know that there is no requirement for a CCA Regulated Agreement to be witnessed but it does form part of the overall picture of shoddy practice that it would do harm to paint.

 

Also bear in mind that the new Unfair Relationships provisions now apply instead of the old ones restricted to unconscionable and extortionate bargains. The new provisions allow a much broader view to be taken.

Edited January 27, 2009 by Viscount Stair
Another follow up

[ncf355]

Folks, thanks foor the details on terminated contracts, case law would be a real bonus but what you have all said makes sense re definition of an "agreement"

[amdmlivingstone]

I do have my own thread under legal issues, but no one was answering my bumps.

 

I had issues with my agent not calling to my house. Provident placed an entry into my experian report which I am trying to get removed at the moment.

 

I am also due to try and get a mortgage in March and I'm trying not to let this effect my scoring so I am still paying them and will continue to do so until I sort out this agreement.

 

I just don't know where to start with court action.

[MajorPaine]

Sorry to hijack this thread, but it does seem to be very active with some knowledegable members.

 

After many months Barclaycard have provided me with what they say is the CCA.

 

I'd be really very grateful if you could spare the time to look at what they sent and let me know if it's enforceable

 

(it's barely legible and they had to blow it up to A3 size)

 

My own thread with link to what they sent is here

[richardteather]

Hi all

Been a member here for a long time but never posted, I started read this thread the other day, but still on page 155 but working to catch up, was interested in the s85 bit that tamadus and ladybird and others started, and unenforceable agreements, so started to send out 77/78 to my creditors, some are good some are not, Barclaycard for one that cabot now have is no good at all, anyway, if any one can help me that would be good, what I want to know is, I have a agreement for a credit card with northern rock which I think is ok not sure yet, but the account is with the co op bank as they in about 2004 acquired a lot of northern rock card accounts, now the agreement they have is with northern rock on a different account no to the co op account, so is it enforceable.

Agreement for one account, with a account number, taking me to court regarding the co op account, with a different account number, but using the Northern rock agreement,

 

Can any of you far brainier people them me shed any light on this, PLEASE

[foolishgirl]

Hi Richard - welcome to CAG

 

This thread is so big now that you will find it easier to get specific advice & also others will be able to follow you threads better if you can post each individual creditor in the appropriate forum eg. Barclaycard for BC bank & credit cards etc.

 

Also if you can them scan in a copy of your CCAs (minus the personal details) CAGers will be able to advise.

 

You'll find the relevant pages here:

http://www.consumeractiongroup.co.uk/forum/#consumer-forums-center-bank

[terlyn1104]

Dont know what to do here my brother got me on the case with these CCA's - I have had three replys so far:

 

Cap One - contains one double sided A4 letter stating 'credit card agreement' however, with no signature or date etc... but they have stated that:

 

'in accordance with section 78 of the consumer credit act 74 and the consumer credit (cancellation notices and copy documents) regulations 83, this is your original agreement, and if any terms have been varied then the copy agreement will include the updated terms. In addition, your personal details, the signature box, signature and date of signature have been omitted from the copy provided as permitted under regulation 3 of the consumer credit (cancellation notices and copy documents) regulations 83'

 

Does anyone understand that? - if this is my 'original' where is my signnature????

 

I am also on a repayment offer with them but they have also added, for good measure, requesting full payment!

 

Any ideas what to do here?

 

Also, Amex have replied enclosing a signed 'application' form and a ten page dossier of T&C's with no signature on! - anyone else come across this?

 

Last, GE Money - they sold my debt to CL Finance - they have acknowledged my request but say that they no longer administer that account they are no longer obliged to provide info requested in accordance with section 78 of the CCA 74

 

They have transfered my £1 payment to CL and say I should contact them for any further details

 

Again, any ideas on what to do?

[car2403]

Hi terlyn1104,

 

This is a load of tripe - suggest you start a thread in the relevant forum for each one, where you can post up what you have received (with personal details removed) and we can pop in and rip each reply to shreds for you...