MBNA CCA and RBS CCA

[Redspike]

Hi,

I am very new to forums so I hope I get the posting right. My head is just above water but caught in the arrears trap with 2 Credit Cards, MBNA and RBS,

CCA requests sent. Received MBNA within the time limit. The paperwork is here:

Image hosting, free photo sharing video sharing at Photobucket

For some reason or other we got charged for PPI, although I didn't sign for it on the application form. Is the CCA valid and enforceable. No formal action has been taken by either company - I just need to know where we stand.


RBS are now overdue as of today, but I'm not sure what to do with any advantageuos results because we have a loan with them, which is up to date. Can they call the loan in if I start to beat them on the Credit Card?

Your comments will be really appreciated. Thankyou

[kyrights]

Re: MBNA CCA and RBS CCA

Do you know if the terms were copied to the back of the agreement or was it part of the original agreement. the first page is clearly unenforceable as it did not contain the APR and the credit limit etc.

It is argiuable if the terms are on the back of what you signed, what they then need to show is that there is a link between the front ad back page since the signature box was on the front page. There must be a link or a reference refering you to the back...ideally, everything should be on a page, but there is a case law which permits parts of the prescibed terms on another page as long as it is refered to and form part of same document.

Loads of questions to be asked in order to acsertain the information you requested...
------------------------------- merged -------------------------------
Bump

[Redspike]

Re: MBNA CCA and RBS CCA

I have copied everything they sent me. The pics on photobucket, MBNA5A and MBNA5B are a blow up version of the small writing on the bottom of the flip side of the CCA (Pic No MBNA5). There is mention of different APR's etc for different amounts but I didn't have a credit limit set at that time. There is no signature on the front or back to acknowledge the T and C's are on the back. I must be honest when you are hastled in a store you just sign to get on with what you went there for in the first place. I can't see a link from the front page to the back. I presume this is a photocopy they have sent me so they could have just photocopied these onto the back of the CCA they sent me. Also at the top of the CCA this states that this is a request for a card which intimates that this is not an agreement but an application. Many thanks for your reply.


13/04/10 1835hrs. added new pic to photobucket named MAG-MBNAbottom. This is the statement bottom left of the CCA = thanks

[kyrights]

Re: MBNA CCA and RBS CCA

I could see signature on one of the documents and it states at the top that the agreement was was regulated by CCA 1974, so this is the main document. It certainly does not contain the credit limit or APR on the front page. The back page is debatable, they need to show that this was there when the agreement was signed. It also seem to contain generic information and nothing specific to your credit limit or APR.

The problem is, they do not only have to send you the terms as they stand now, which is what they have mostly sent you, but they have to send the terms at the time it was obtained.

The back page of the picture is not very clear, however the Acts requires that the below details are embodied or incorporated in the agreement.


Below are basically what we are looking for:

B Repayments
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following -
(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.
C Rate of interest
A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit
This may be a term or the manner in which it will be determined or that there is no credit limit.


Finally, did you take PPI with this?

[Redspike]

Re: MBNA CCA and RBS CCA

I didn't tick the box on the application form but we ended up paying for PPI and I can't remember asking for it. We paid it for some time ( I have some of the statements) I cancelled it 12 months ago because I went self employed and I understood that I wasn't covered anyway.

One other query - the last photo that I uploaded was a blow up version of the front left corner of the CCA. It is a declaration that I acknowledge reciept of the T and C's and that I will abide by them. I presume they are referring to the T and C's on the back of the CCA. Does this make any difference?

RBS have still not replied.

many thanks

[kyrights]

Re: MBNA CCA and RBS CCA

If you were charged PPI, you may be able to claim some money back from them. even though you've cancelled it. You might need to make a Data protection request for the statement of account as

Just noticed your post about the loan...No they cannot call the loan in if it's up to date, but if you bank with them, they can take money from your account to offset part of the card balance.

[Redspike]

Re: MBNA CCA and RBS CCA

Thanks for the info. Which is the best way to proceed with MBNA?

Do I tackle the PPI first?

If the agreement is unenforceable then I will use this as a bartering tool to reduce the balance and settle with them. Much of the criteria that you put forward has not been implemented on my CCA and there seems to be a good few areas that I can challenge them with. Is there a template letter or would this be bespoke in my case?

Although the Main Stream Media is reporting improvements in the economy I believe there are a lot more bad times to come. I am trying to clear the path to put myself and wife in a stronger position.

I am self employed and am earning pretty good money at the moment. The reason for my my arrears on the CC's is a backlog from last year, which was very poor. Its hard trying to play catchup, which also includes business debts. Cashflow is good at the moment and creditors seem reasonably happy and content with my efforts, although there is very little buffer.

With regard to RBS, they have not replied to my CCA request within the specified time. Do I contact them again or just wait?

thanks in anticipation

[kyrights]

Re: MBNA CCA and RBS CCA

You can tackle them simultaneously (But separately), you would however need the full account history to start tackling PPI, that is why I suggested requesting account history etc from them first.

If the agreement is unenforceable (as it seems to be), you do not have to negotiate as it basically means that they cannot enforce recovery and it will be statute barred after 6 years anyway, even if you negotiate, it will still be a blight on your credit except if part of the negotiation is that they will remove any adverse record made against your account.

For RBS (sorry if you've mention this before) Are you still paying them and up to date? once the account is in dispute, and they have not supplied the requested CCA it effectively means that they cannot enforce recovery until they supply the requested (this position is backed up by the CA 1974 itself). But if you are still paying them, and they do not supply CCA, there is not much you can do except to start court action and you need to notify them that this is your next action.

[kyrights]

Template if no response to CCA request

Template gathered from MoneySaving expert forum, but you should find it useful. Remember I said the logical action is court action, this is the prelude to that.

Formal Complaint
Letter Before Action

Dear Sir/Madam,

I do not acknowledge any debt to your company.

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your purusal and ease of reference.
You have failed to comply with request, and as such the account entered default on **DATE**.

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

I am of the opinon that the document you sent does not meet further pescribed terms as set out in the Act, eg:

Consumer Credit (Cancellation Notices and Copies of Documents)
Regulations 1983 (SI 1983/1557

2 Legibility of notices and copy documents and wording of prescribed Forms


(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily
distinguishable from the [background medium upon which the information is displayed].

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed
agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act
without any alteration or addition, except that--
(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed
by these Regulations; and
(b) every Form shall be completed in accordance with any footnote.

Further more I am also of the opinion that the copy of the agreement does not comply with the conditions set out by the Consumer Credit Act 1974 s.61.(1) which states that an agreement must contain certain prescribed terms, the Consumer Credit Act ( Agreements) Regulations 1983 s.6 sets out how these terms should be contained with in one single document and if not, is not enforceable by the court Consumer credit Act 1974 s.127(3) , recent case law Wilson V Hurstanger Neutral Citation Number: [2007] EWCA Civ 299.

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

* may not demand any payment on the account, nor am I obliged to offer any payment to you.
* may not add further interest or any charges to the account.
* may not pass the account to a third party.
* may not register any information in respect of the account with any credit reference agency.
* may not issue a default notice related to the account.

Therefore this account has become unenforceable at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

I reserve the right to report your actions to any such regulatory authorities as I see fit.
You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

I would appreciate your due diligence in this matter.

I await your rapid response.

Yours Faithfully

[Redspike]

Re: MBNA CCA and RBS CCA

Hi KYrights,

Re RBS

I sent a reminder notice on 23/03/10 as follows:

RBS
Credit Card Operations
PO Box 5747
Southend on Sea
SS1 9AJ




23nd April 2010


xxxxxxxx
xxxxxxxx
xxxxxxxx
xxxxxxxx




Account number : xxxxxxxxxxxxxxx




Dear sir or madam


Re: Reminder for request for copy of alleged credit agreement under Section 77/78 of the Consumer Credit Act 1974


I wrote to you recently requesting a true copy of any alleged signed, executed credit agreement in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of a fee of £1.00. This payment was included with my original request.


Under the above Act, a creditor has 12 working days to supply this document to the debtor. Royal Mail confirms that you signed for this letter on the 23rd March 2010 and so this deadline expired on Thusday 8th April 2010. Thus far I have received no response to my request. This means that you are currently in default of my request. Whilst your default continues, you are not entitled to enforce any part of this alleged agreement.




This includes, but is not limited to, the following:


* You may not demand any payment on this alleged account, nor am I obliged to offer any payment to you.
* You may not add any further interest or charges to this account.
* You may not pass this alleged account to any third party.
* You may not register any information in respect of this alleged account with any of the credit reference agencies.
* You may not issue a default notice related to this account.


Please also note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute.


You have a further 10 days from receipt of this correspondence to rectify your default.


If you do not have any signed agreement in relation to this account, please confirm this in writing. If I receive no response at all within this period it will be construed that there is no agreement and that there is no contract between us.


I will be making no further payments to this account until this matter is resolved to my satisfaction. It would be a breach of the Administration of Justice Act 1970 for you to continue to take any action against this account whilst this default remains.


Please conduct all communication with me regarding this account in writing only. For your convenience, I include a copy of my original request letter. All letters have been sent to you by Recorded Delivery so I can prove that you received them if necessary.


I look forward to your swift response.


Yours faithfully





xxxxxxxxxxxx


This went on Friday, via Recorded delivery. This morning I have recieved a reply from them which has crossed in the post (not recorded delivery)


This is their reply to the original CCA request:






Which is the best way to proceed?


Many thanks,


Redspike

[kyrights]

Re: MBNA CCA and RBS CCA

Hmm, they are actually right in their assertion (wish all the banks would own up like that). but what does this mean for you?

Basically, they cannot enforce the debt, meaning they cannot send baillif or take you to court as they will lose even before it gets to court.

But more important is the fact that the debt is not wiped off, this is the strange state of the law, I am sure this has not been fully tested in the court but the few judgements in this jurisdiction all points to...bank are entitled to register defaults etc...if lawful, (check the default letters, if faulty and not according to certain specified details and dates, this is one way to get default removed).

So it is now your judgement call, if you are still intent on keeping your credit, you might consider paying them, but if they have already messed it up or if you want to carry out same actions on all you creditors...then this might just be an option.

Remember, after 6 years the debt becomes statute barred anyway... The ball is in your court.

[Redspike]

Re: MBNA CCA and RBS CCA

Many thanks for your reply.

Whether our credit rating has been affected or not is not really a priority to us (we haven't checked it). I am 54 and my wife is 57. We have almost everything we need. My main problem is with the Finance Sector in general, the fraud and crime that is rife throughout the industry and ordinary people are getting clobbered for it. The Fractional reserve banking system seems to be just a big scam. Up until recently I had a mortgage problem - one thing that I do need to maintain in good order. They were hitting me £40.00 a shot if I was a day or two late with my agreed payment schedule, and then I presume sticking interest on the charge. I am self employed and my money comes in when its ready and I can't pass those £40.00 onto my clients.

My conclusion is that if they have been incompetent then they should pay. May sound harsh and cynical but myself and my wife really got "beaten up" last year by creditors - they get you in such a spin with their incessant calling and autodiallers and foreign people you can't understand - that you really don't know where you are. Seems to me that there is no remorse for people in the street from these gargantuan corporations. Yes, there is all the debt protection schemes and organisations out there helping, but if given the chance and choice the financiers will finish you off. If the boot is on the other foot they go in for the kill - no question, or get bailed out by taxpayers if they drop a big boo boo.

This year is a much better year for us and our debts have been mainly under control. By sacrificing our credit rating, it will give us better control of whats left.
We have been married for thirty years and have never had a problem until last year - so they have made their money out of us - but as soon as we started struggling the onslaught started. My overall view of the financial world has changed dramatically over the last 12-18 months. I have no sympathy for them whatsoever. It wouldn't suprise me in the least if the whole thing came tumbling down within the next 3 or 4 years. I was brought up in the old school where loyalty was a reason for staying at a bank - but not any more.

I will sit on this info for a while to see what response I get from MBNA. I take it that since the crossed letter that I sent on Friday, the reminder (RBS), puts the account into gridlock from both sides.

I have also sent the letter to MBNA regarding the incomplete CCA. They should have both recieved those letters today - I will check the post office site.

Many thanks for all the assistance to date,

best regards

[kyrights]

Re: MBNA CCA and RBS CCA

I quite share your view and that is what that has brought me here, I am not a lawyer but have now learnt a lot because it came to a point where I thought, it's a fight for my life and my family's sanity.

My wife finished university and I was the only one working while she was there (She left work for further studies), she was unemployed for a year after graduating and within that year all credit hell broke loose as we could not keep up repayments on laons and credit cards the credit rating we have sought to keep was in tatters, store card, credit cards, and a loan. We were being pulled from all angles.

Guess what I did? After I came to the conclusion that this was a fight for my life and the sanity of my family, when there was no more food on the table because we had to pay the banks first...I stopped all payments and signed up with a debt management company while simultaneously signing up with these rogue unenforceable claims company , after I've paid them excess of £1,300 and with no single debt written off or sign of it thereof, and with the banks by then taking me to court, (not all of them accepted the DMP) I turned to the (DMP)debt management plan company, they told me to simply wait for a letter from court titled, Judgement for the claimant!, which effectively means that I should raise a white flag! I knew there and then that I had to start fighting, and fighting I did. I believe my life was more important than protecting a credit rating.

Firstly I chased off the first bank to start court action all by myself, when I got a court notice titled "Notice of dicontinuance of action" or something like that, I felt, I could actually take on this fight and that is what I am currently doing, I and NastyWest have an oncoming date in court now, and it was Hairyfax that discontinued their credit card recovery action. I then went to show the debt management company the discontinuance notice before I stopped paying them altogether.

I have now read widely the 1974, 2006 and other related regulations and Acts...and believe there is a fighting chance even when the agreement seems enforceable. It is still a long fight ahead of me.

But I am encouraged and happy to assist others who are going through similar situation, just like some people have advised me in the past.

[Redspike]

Re: MBNA CCA and RBS CCA

I wish you every success in your quest.

Although we are not entirely blameless, we got took along with most other people but we have always got through recessions in the past. This time round (this recession/depression) has had a much greater impact on us and society and will continue for many years to come. The solutions to the problem is heavily debated by top economists from different sides of the fence and there doesn't seem to be a consencus for a recovery plan. People and business are paying down debt, which means the economy will generally stagnate and possibly contract. Houses and property will devalue over a long time period, some predicting 50% or more over the next ten years. Many people and business with mortgages will become stuck in the negative equity trap, me probably being one of them. This has happened in Japan over the last 20 years or so and can quite easily happen here and the rest of the associated nations.

I am reasonably well informed. I am director of my own company and I used to be Part Time Debt Councillor 25 years ago (I'm a heating engineer by trade), licensed by the OFT - although things have changed since then.

I did this purely to help people and business fight the PTB. Many times the cases were very sad, and I saw the effect of Debt on family life, so I am not totally green - that was the reason for me giving it up. I have battled with bailiffs, seen people cry, seen marriages split and it became too much for me to handle, along with my day job.

I am in the process of controlling my explosion, at my pace. Yes I have problems but I could manage them if I had to, but the thought of whats coming down the pipe would destroy us financially anyway and there is no way I can pay off the debts in time - We don't earn enough. The other way that I look at is that it is affecting our life, with very little surplus to have a life. We could be gone from this world in the next 5 to ten years so what advantage do I achieve paying everybody off, and may not even have the time to pay everybody off.

I have revisited the CC act 1974 just recently because with twenty five years gone by, the old grey matter recall isn't that good. I am also studying Contract Law more in depth. There has been a recent review of the Act by the OFT and it seems to me that they are doing as much as they possibly can, tranparently, to assist the creditors, without stirring up a Hornets nest with the consumer side. This document also referred to some of the Court Cases in Manchester.

With reference to reconstituted agreements , I believe to be totally unfair.
With reference to no documents at all, as in my case (RBS), then as far as I am concerned I have not contracted to be governed by the the CC Act 1974 and the matter should be dealt with at Contract Law and Common Law, if a contract exists. No contract- no debt!
The contract should be bilateral (2 signatures) and they are a supposedly competent business - their records should be in tact and produceable on demand, as per the act, which is what the law states that they should do. I am a qualified Commercial Energy Assessor and I have to keep records ( electronic and paper for 15 years or I can get struck off (Goverment rules). Why should the banks not be held accountable for losing paperwork? Instead the court rules in some circumtances that these agreement can effectively be "made up".

These forums are excellent for sharing and spreading the load. You realise that there are many ordinary, honourable people on here who are just trying to survive - and good luck to them all. The beauty of technology and the information highway.

I believe pooling knowledge and experiences will eventually start to pay off against the big boys. We need more relevant test cases, case law and experiences to refer to.

I am also looking into the Freeman movement and their theories and practice regarding debt, Contract and Common Law. I am not active but I am increaingly becoming interested as a "hobby". I find it quite fascinating that laws from many years ago can be utilised. Again experiences, test cases and case law will determine if the system is completely valid and the outcome is definitley positive for the debtor, without future recourse from the Creditor.

You may be thinking "if he was a Debt Councillor whats he doing on here? "

Being in business on your own can be lonely, being in Debt on your own is even lonlier. Knowledge is power and pooling of minds passes knowledge, empowering everbody with up to date methods, solutions and facts _ Power To The People!! A third eye, independent view is a valuable commodity,

best regards

[Redspike]

Re: MBNA CCA and RBS CCA

Hi Kyrights,

I have contructed a letter in reply to RBS. My reminder to them crossed in the post with their reply to the CCA request. Would you like to give me an opinion before I send it? Many thanks.


Without Prejudice


Dear Miss xxxxxxxx,


Re Account Number xxxxxxxxxxxxxxxxx


Thank you for your organization's truthful reply, of which I have noted the content.


My reminder, sent to you on the 23rd April 2010 crossed in the post with your reply, however the content of my letter still stands apart from the reminder element. Your organization has now replied to my Credit Card Agreement request, dated 18th March 2010, albeit your reply took over a month to reach me. Your reply was delivered already opened and my address details were handwritten on the envelope it came in, which I found suspicious coming from a large organization like yours. This was received on the 26th March 2010, the date on your correspondence was 16th April. In effect it took 10 days from writing it to my receiving it.


I am only a Layman when it comes to the Consumer Credit Act, but I have read it thoroughly and am beginning to understand many parts of it.


My initial reason for requesting my Credit Card Agreement was to back check the interest rate, Personal Protection insurance ( which I cancelled in writing on the 6th October 2007), and other charges to the account. I cancelled the PPI because a friend told me that I was not covered because I was classed as being self employed. I have no reference to the PPI agreement at home, if indeed I ever received the Terms and Conditions of that Policy. I wasn't aware at the time of cancelling of my consumer rights (with regard to research that I have recently carried out on the internet, regarding other individual's cases).


As a direct result of the PPI charges any alleged balance will be rising, in a compound manner, based on the interest charged, for all the premiums paid on the account over it's lifetime.


Because of the content of your recent reply I do not and cannot acknowledge any debt to your company.


Furthermore, you can provide no reference to an agreement, interest rate and other prescribed terms and conditions of the Credit Card at the time of application (if there is one?), as per Consumer Credit Act 1974 and any subsequent amendments, the method and reason the Personal Protection Insurance was added, the amount of your charges, and the details of the rolling commission charges that you received as a result of PPI. This makes it is impossible for me to calculate or consider any misrepresentations or errors by you, applied to the account over its lifetime.


I understand that you have stated in your correspondence to me that the account should be maintained but substantial differences could/will occur to any account balance. For that reason, and because I have no chance of being able to scrutinise or calculate anything because of lack of information from you, I will not be paying any further monies until this matter can be brought to a satisfactory conclusion.


I will reiterate my terms from my reminder, dated 23rd April 2010, bearing in mind that this is now formally and legally a disputed account:


“Whilst your default continues, you are not entitled to enforce any part of this alleged agreement.




This includes, but is not limited to, the following:


* You may not demand any payment on this alleged account, nor am I obliged to offer any payment to you.
* You may not add any further interest or charges to this account.
* You may not pass this alleged account to any third party.
* You may not register any information in respect of this alleged account with any of the credit reference agencies.
* You may not issue a default notice related to this account.


Please also note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute.


It would be a breach of the Administration of Justice Act 1970 for you to continue to take any action against this account whilst this default remains.”


I will refer you to a recent county Court Case, MBNA v Lynne Thorius, where this ladies debt was zeroed and she received a full refund of her PPI contributions over the term. There was some form of Credit Card Agreement to refer to in this case, but obviously it did not comply along with the misselling of PPI.


Because I personally have no reference to agreements or Contracts to any of our alleged dealings I am not able to comment nor formulate an opinion on any relationship that we may have, nor can I prove or disprove any figures or calculations that you claim are owed on the account.


I trust that your initial honesty and integrity will be maintained in the future. What are the chances of the Credit Card Agreement being found? We both understand the rules and regulations regarding Statute Barring, but it doesn't seem to make sense to me prolonging the matter if there is no chance of recovery of the agreement.


I will look forward to receiving your reply with a fair and just resolution regarding this dispute within the next 7 days, in writing only. Telephone calls will not be accepted at this stage.


I will also state now that this correspondence will be used as evidence in a Court of Law if this matter gets to that stage. All my correspondence with you has/will be sent by Special Recorded Delivery so that I know that my correspondence is being received by you,






Yours sincerely