CCA query

January2015

absolutereturn wrote: »

The main thing here is whether those were actually the T&Cs that applied to your account when you took out the Abbey card or not. If, as your post suggests, they are CURRENT MBNA terms, then they have not complied with your CCA request and if they contact you again, you can just say they are in default of your request.

They have definitely NOT supplied the T&Cs for the Abbey account and not even for the account when it was transferred to MBNA in 2003. DH didn't live here when he took the card out - bit of a give away if nothing else as they have quoted this address on the T&Cs sent out.

It also mentions online account etc. etc. I'm sure they weren't operating online accounts back then.

The only date on the document is on the letter (which is page 1 of the document) and it is dated this month.

fermi

https://www.handbook.fca.org.uk/handbook/CONC/13/1.html

The copy agreement

CONC 13.1.4G01/07/2014

(1) The copy of the executed agreement should be a 'true copy' of the original. However, as confirmed in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB), in this context the term 'true copy' does not necessarily mean a carbon, photocopy, microfiche copy or other exact copy of the signed agreement. There is no obligation to provide a copy which includes a copy of the signature.

(2) The firm can reconstitute a copy. It can do this by re-populating a template of the relevant agreement form with the details of the specific agreement taken from its records. If the firm does provide a reconstituted copy, it should explain that that is what it has done, to avoid misleading the customer that this is a contemporaneous copy.

(3) The terms and conditions should be those applicable at the time the agreement was executed. The name and address at the time of execution must be included.

(4) The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.

(5) If the reason why no copy is given in response to a request under these sections is that there never was an executed agreement, the firm should acknowledge this in its response.

(6) If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also either:

(a) a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or,

(b) a clear statement of the terms of the agreement as varied.

(7) Further, section 180(1)(b) of the CCA and regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 expressly allow certain matters to be omitted from the copy. There may be excluded from the copy of the executed agreement to be provided under these sections.

(a) any information relating to the borrower, hirer or surety, or information included for the use of the lender or owner only, which is not required to be included by the CCA or by any regulations made under the CCA as to the form and content of the agreement;

(b) any signature box, signature or date of signature;

(c) in the case of pawn agreements, any description of the article taken in pawn.

January2015

Thanks Fermi - I need to 'read and digest' that lot

fermi

OK. Can sort out a reply if needed later then.

absolutereturn

January2015 wrote: »

They have definitely NOT supplied the T&Cs for the Abbey account and not even for the account when it was transferred to MBNA in 2003. DH didn't live here when he took the card out - bit of a give away if nothing else as they have quoted this address on the T&Cs sent out.

It also mentions online account etc. etc. I'm sure they weren't operating online accounts back then.

The only date on the document is on the letter (which is page 1 of the document) and it is dated this month.

Sounds like they sent you current MBNA terms as I suspected. In that case, they definitely haven't complied with your CCA request.

sourcrates

January2015 wrote: »

Ok - response received from MBNA which states:

Dear Mr January

Enclosed you will find your current MBNA Credit Card terms and conditions - we've sent these to you as you either requested a copy or because you've added your card to a mobile device.

[goes on about managing account online]:rotfl:

We hope you continue to enjoy the benefits of your credit card account. :rotfl:

Below is what I asked for:

[FONT=&quot]With reference to the above agreement, I would be grateful if you would send me a copy of this credit agreement and a full breakdown of the account including any interest or charges applied. [/FONT]

[FONT=&quot] I understand that under the Consumer Credit Act 1974 [sections 77-79], I am/we are entitled to receive a copy of any credit agreement and a statement of account on request. [/FONT]

[FONT=&quot] I enclose a payment of £1 which represents the fee payable under the Consumer Credit Act 1974.[/FONT]

[FONT=&quot] I understand a copy of any credit agreement along with a statement of account should be supplied within 12 working days.[/FONT]

[FONT=&quot] I understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account under these sections of the Act.[/FONT]

What they have sent:

8 printed pages which start with "Your lender is MBNA" and no signatures etc. etc.

We took this card account out in late 1990s with Abbey National and it was just transferred to MBNA around 2003/2004

What's my next move ? I should say we are in no way able to offer a F&F of any amount on this account {at the moment anyway}. It is still with MBNA at the moment - although has been defaulted.

Hi January,

Well, as the above posters have said, the document they have sent you is not a copy of your credit agreement.
This adds weight to the theory that they don't actually hold a copy of it.

So you have two choices, either you can carry on as you are with the debt, or, write back to them, tell them what they have sent you does not comply with your sec 78 request, and you will stop payments to them, until they either do comply, or advise you they are unable to.

January2015

sourcrates wrote: »

Hi January,

Well, as the above posters have said, the document they have sent you is not a copy of your credit agreement.
This adds weight to the theory that they don't actually hold a copy of it.

So you have two choices, either you can carry on as you are with the debt, or, write back to them, tell them what they have sent you does not comply with your sec 78 request, and you will stop payments to them, until they either do comply, or advise you they are unable to.

Hi Sourcrates

Many thanks - apart from the interruption of that thing called Christmas....consider non complianceletter sent back to them

Now.....do I just phone/email SC and advise this debt is 'in dispute pending receipt of S78 request' and they are not to make any further payments to it at this time?

sourcrates

January2015 wrote: »

Now.....do I just phone/email SC and advise this debt is 'in dispute pending receipt of S78 request' and they are not to make any further payments to it at this time?

Yes, sounds like a plan to me.

I'm not too sure on the stance stepchange will take with regard to potentially unenforcable debts, so just tell them what you what them to do, don't ask, polite but firm, if you know what I mean !!

fermi

Unless they have changed their tune, StepChange do not usually like or will not exclude a debt from a DMP on the grounds of non-compliance with a s77/8 request.

I can understand that in some ways given what they do, as temporarily unenforceable is not the same as not being owed.

Neither is it always as simple as saying:

Not complied with s77/78 request ≠ you can always stop paying with impunity.

Still could be the case that they miraculously drag up something compliment. Has happened in unlikely cases before. Then they could go straight for court action if they are very snotty or sell to a DCA who does.

Or may be never ever be anything better than what they have found now come to light.

So you have to take it on a case by case basis. Weigh up the pros and cons. Do you stop paying now and take a calculated risk? Or do you wait for a little bit to see how they respond to the next letter and what that might prompt them to go digging for?

January2015

fermi wrote: »

Unless they have changed their tune, StepChange do not usually like or will not exclude a debt from a DMP on the grounds of non-compliance with a s77/8 request.

I can understand that in some ways as temporarily unenforceable is not the same as not being owed.

Neither is it always as simple as saying:

Not complied with s77/78 request ≠ you can always stop paying with impunity.

Still could be the case that they miraculously drag up something compliment. Has happened in unlikely cases before. Then they could go straight for court action if they are very snotty or sell to a DCA who does.

Or may be never ever anything better than what they have found now.

So you have to take it on a case by case basis. Weigh up the pros and cons. Do you stop paying now and take a calculated risk? Or do you wait for a little bit to see how they respond to the next letter and what that might prompt them to go digging for?

Thanks Fermi and Sourcrates

Well I think the next SC payment is just a week away on 1st January and paid to creditors mid month. So we'll play 'nice' and let that one go through.

In the meantime we will write back to MBNA and notify their response doesn't comply. Will see what comes back and then decide if we need to move to self managed DMP - at which point we can cease payment until they provide the correct response. That way I won't upset stepchange

I'm not going to lie - I am really hoping this is unenforceable. I know some folks will shout that we owe the money, we must pay it and in an ideal world we would. My life is not ideal at the moment - far from it. I've posted some of our very recent concerns elsewhere on the forum but they are by no means the whole story and we'll opt to keep the rest of it private - if only they were all financially related it would be great, but they're not.

However we must take the doors which open to us as and when they do which help life move forward. I'm hoping this will be one such door

I very much appreciate all the advice and support - thank you:beer: