First credit asking for higher payments for MBNA debt

[The GodMother]

All i would advise is to wait and see if mbna are really unable to deal with her request buy not providing the cca or are just telling you tahat to make you think they have noting the default you when you make no more payment. Nice one for asking them to put it in writing but please understand they may not do this. If you dont recieve a letter from them with the cca or telling u the cca is not available then after the 30 days write to the fos as they should be able to help u with sorting this matter out. If MBNA file court papers dont worry as they have refused to/ not supplied the cca and you can use this in your defence ans you have proff that the company was contacted to ask for a copy of the agreement, you should have kept a copy of the letter, and proff that they recieved the letter, as it was sent buy recorded/special delivery you would be able to obtain proff of recipt. The judge would look on that is them not compling and you should win.

 

Good luck and please keep us posted.

[MrSooty]

Appreciate the confirmation of our position here - still feels odd to be taking these companies on at their own game - and with a chance of 'winning'!!

 

I have asked for a written response and will follow through on the CCA deadlines etc - I also don't get involved in phone conversations now, like I used to do - silly boy!

 

I have to say my 'moral position' is changing daily - partly because we have been paying for over 4 years, regularly every month and above the minimums that were originally asked for....in addition, we recently wrote to my wife's creditors to see if they would accept a substantially reduced settlement figure (borrowed from our Tax 'savings') - which they rejected - also we only got into this situation through a failed business - which is our responsibility, but it wasn't due to a lavish life style, so we can all make mistakes and no-one lost out, we paid everybody EXCEPT the Credit Card Companies (who had made thousands in interest off us already) - and finally, because I was always aware of how much money the Banks 'loose/waste' annually by investing in Foreign companies/governments etc and it runs into Billions (ex-NatWest Employee) - so, maybe it really isn't worth us going without stuff and worrying ourselves over a few grand ??

 

Hey, I feel much clearer after that little rant - great therapy on here

[Goldlady]

MrSooty I worked out on a spreadsheet how much I had originally borrowed and how much repaid, and discovered that I have more than repaid all my card debts. So all that is still owing is interest and charges. If you take irresponsible lending into account (Goldlady gets on her soapbox) and all the interest and unlawful charges, then really I have repaid them. I'm sure you will be in same position. Mine are all to do with business problems too - the Government encourage people to go self employed to keep the dole figures down, and then give you no help at all when the sh*t hits the fan - as we found out during foot and mouth 1. (still paying ccj to Inland rev for PAYE/NIC when all staff made redundant which Mr Blair said we would not have to pay:mad:)

 

OK rant over. CCA them all MrSooty - OC's as well. I have:D

[oneofakind]

MrSooty,

Congratulations on taking charge of your situation!

 

Can I just add my two pennorth...

 

If you do not receive your enforceable CCA agreement, then that debt is unenforceable. BUT it is still a debt, and will hang around on your CRA files for a while.

 

You don't HAVE to pay when the creditor is in default, and this fact gives you a great opportunity to offer a full and final settlement on your terms. (ie, CHEAP! )

 

If you were the creditor, and you had the choice of not being paid, or accepting a guaranteed percentage, what would YOU do?

 

Just make sure that you make any f&f offer conditional on the removal of any defaults on your credit file, and DON'T SETTLE until you have their agreement IN WRITING.

 

[MrSooty]

Many thanks to Oneofakind for a splendidly lucid summary of the situation vis a vis the status of our debts during CCA submissions to DCAs!!

 

Never thought I'd speak 'CAG' so fluently - or so quickly

 

We had previously offered my wife's creditors a chance to settle on 'preferential terms' and just one took us up on the offer - but although I did state it was on the understanding that our credit file would reflect the F&F settlement, they have never confirmed that in writing and to be honest, neither have we checked our files since....next time I'll be a little more careful!

 

In terms of cash settlement offers - anyone want to suggest a typical 'range' we should expect to be in percentage-wise?? I would HATE to embarrass myself by overpaying

[powelll]

Useful link below for F & Fs. To be honest it will really depend on the exact circumstances - lots of creditors are really tightening up on F & Fs. So a couple of years ago you may have got settlement for 15-20% of what you owe. I know some creditors now will not go below 50 - 70%. But I'm sure there are exceptions to this ( cue about 50 posts from people who have got really good deals! ).

 

National Debtline England & Wales | Debt Advice | Factsheet 24 Full And Final Settlement Offers

[MrSooty]

Appreciate the input from Powell - makes me feel quite good, as I got a 30% deal from a DCA couple of months ago and in truth, will be looking at going well below that number for any others that want to go that route - so wish me luck!!

 

My thinking here is that after paying for 4 years, if we put 30% more in to settle, they've had at least 50% of the original sum owed - but of course, that included some 'added costs' - like interest!!!

 

Anyway, got another interesting question for someone - just got a letter from Morgan Stanley (aka Goldfish), in response to a CCA request and they are asking for 'proof of signature - driving license/passport and only original documents will be be accepted' - HELLO!!!??? That's how you get a good sample signature to copy isn't it - or am I just being a tad cynical here folks....????

 

Is this a legitimate request and how should we respond???

 

They've given my wife until 31st October to respond or 'we will close our file accordingly' - whatever THAT means??

[powelll]

You don't have to provide this as is isn't a requirement under CCA rules. What you could consider doing is sending a totally different signature... a bit naughty I know but may be interesting

[MrSooty]

Mmmmm - as I suspected - sneaky tactics from Morgan Stanley!

 

I had been tipped off about the 'non-standard signature' and we have not used our 'normal' signings for CCA letters - and will continue to do so in other communications!!

 

Clearly, by asking for Drivers License or Passport, they WOULD get a proper signature - so good thing we aren't obliged to - is it therefore necessary to write and tell them that or would they (and the Court) know and accept this was simply a 'device'???

 

The suggestion that they would simply 'close their file' if we do not respond is odd - and seems to suggest that it would end our 'right' to claim CCA 'status', which from the helpful replies I've had is sheer tosh - n'est ce pas'???

 

This is an interesting 'game' and am I glad I'm playing with the first team

[oneofakind]

If they are prepared to send you 'legal' documents at your known address, and accept payments from you, then why do they need a signature?

 

They're not quoting 'DATA PROTECTION ACT' are they? :D

 

Eejits !!

[MrSooty]

Have today received a response from one of the DCAs to our CCA requests and they have included a copy of a 'short application form' completed by my wife when applying for her Capital One Credit Card - in 2001 - so where does that leave us now...????

 

Back to square one, I guess - any point in sending a SAR letter...

[42man]

That is good news it is only an application form - not a properly executed Consumer Credit Agreement....take off all the personal details and post it on here for the experts to look at....

[Josie8]

Yes send SAR because then they have to provide all documentation they hold on you...........will show if they have any other documentation relating to agreement.

 

Post agreement up minus personal info so we can see if prescribed terms are there. Chances are given the date they aren't.

[MrSooty]

Not sure how an application for a credit card facility, differs from a 'properly executed Consumer Credit Agreement', but happy to hear the 'good news' from 42man - so thank you!

 

Will need to wait for the 'clever one' (who is also the pretty one) to sort out the scanning side of this - but will post a copy as suggested - not a very clear document copy now, so hope it is readable when it gets loaded up here!

 

Thanks as usual!

[Curlyben]

To be a properly executed credit agreement there are certain things it MUST contain.

These are the prescribed terms.

Now the Cap1 short application form on the whole doesn't come any where near what is required.

 

If you could scan for us to be 100% sure, but from what you have already said it certainly sounds unenforceable.

Also it must be easily readable

 

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

[Rtech]

Ref the Godmothers reply,with great respect,I would certainly NOT send letters chasing the CCA.

They cannot do anything with the debt,if they have not got one AND they know it,it is no problem for you,...no CCA = no enforceable debt=no payment.

They may then get various DCA's to chase you for this then non-debt,so just collect the letters do not talk to them on the phone,and as this method of operation is totally against the OFT's Debt Guidance,just build your evidence against them,just in case,it can be used against them somewhere down the line. Let them dig a deep hole,for themselves....and of course there is the possibility if you do chase them,AND they try harder and find a CCA,then you have gained nothing.

[oneofakind]

I'd endorse Rtech's views. Once you have confirmation that your CCA request has been received, NEVER chase it. You've done your part.

 

Let the 'creditor' comply or fail. The ball is in their court now.

 

This 'short form' is almost certainly unenforceable. Please post it as soon as you can.

 

[MrSooty]

Response to our CCA request from NCO Services on behalf of Capital One Services Inc - it was a poor copy when it arrived and has obviously been copied again, so not great.....

 

From previous postings, I rather get the feeling this isn't up to scratch!!

CapitalOneCreditAppFormNCO.pdf

[Josie8]

No prescribed terms. Totally unenforceable.

[Curlyben]

As ever NCO come up trumps with a completely UNenforceable application

[MrSooty]

Sounds like a resounding 'nil points' for NCO to me

 

Thank you good people of CAG once again!

 

Guess I'll file that one in the NFA (No Further Action!) folder....

[Goldlady]

Otherwise known as the 'Now F*** Off' folder - mine is growing all the time:D

[The GodMother]

I was only responing to the fact they they have wrote to MrSooty saying they are will to help her with the debt management department. If they fail to provide the cca and keep writing to Mr Sooty then he can have them done for harrassent or summing like that buy the fso and or ts as that is illegeal to chase for a debt they they have admitted there is no cca or refused to respond with a cca. Also chasing a debt which is unenforcable would be meaning Mr Sooty is entitled to compo from the company if he is awarded it buy the fso.

[MrSooty]

First Credit have finally written to me enclosing 'an edited copy of the signed agreement' requested via my CCA letter dated 28th August and to which they originally replied in a letter dated 4th September!!

 

Based on the date computation kindly provided by CurlyBen, this would appear to put them well out of court - literally!!

 

I am posting up copies of the two pages of heavily 'edited' (blacked out) documents they sent - having also removed my personal details - AND a copy of their letter, which I think is also rather 'interesting'??

 

I guess the 2 key issues now are (A) does the timing of their response mean they have 'failed' to comply....? and (B) from the limited documentation sent to me, can you say if the Agreement would be valid even if it had been received in time...??

 

Subject to advice suggesting otherwise, I would expect to quietly ignore this latest communication and see where we go from here!??

 

Oh, just wanted to mention that after receiving VERY regular day time phone calls from 1st Credit to my home, some from an automated service (electronic voice!!) and some during the evening, I sent them a copy of the 'harassment letter' earlier this week and so far, have only had the one call!

 

Like it says on the tin, CAG advice really works!!

 

Look forward to feedback as usual!!

1stCreditMBNACreditAgreement_27Oct2007.pdf

[lookinforinfo]

What they have done is edited out the top of the document so it is not possible to see if it is the application or the real McCoy.

 

Is it your signature? If not, do not respond by sending them a copy of your

signature as proof.