CCA query

absolutereturn

fermi wrote: »

Posting style is curiously familiar as well. :think: :cool:

You mean mine or Sourcrates'?

I'd not posted in years!

pt2537

The Court of Appeal in Kotecha made it clear that

1. The relevant ground of defence is that HFC had not complied with the request under Section 78 and could not therefore enforce the agreement. The relevant terms of Section 78 are as follows:
   "(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, …"
   I need not read the rest of that subsection.
   "(6) If the creditor under an agreement fails to comply with subsection (1), (a) he is not entitled, while the default continues, to enforce the agreement."
2. In order to comply with the request the creditor must supply a copy of the whole of the agreement, not just part of it. Any terms and conditions incorporated have to be supplied.

The above is often wrongly ooverlooked by laymen and lawyers alike!!!¬

absolutereturn

pt2537 wrote: »

The Court of Appeal in Kotecha made it clear that

In order to comply with the request the creditor must supply a copy of the whole of the agreement, not just part of it. Any terms and conditions incorporated have to be supplied.

The above is often wrongly ooverlooked by laymen and lawyers alike!!!¬

It wasn't overlooked in the letter I posted.

absolutereturn wrote: »

Something like this:

ACCOUNT NUMBER: xxxxxxxxxxx

ACCOUNT IN DISPUTE

Thank you for your letters dated xxxxx, the contents of which are noted.

On the xxxx I made a formal request for a copy of the executed agreement for the above numbered account under s.78 of the consumer credit Act. In response to this request I was supplied a copy of current MBNA Terms & Conditions which did not apply at the time I took out the card. The document that you are obliged to send me is a copy of the executed agreement that contained all of the prescribed terms as defined in s.61(1) of CCA 74. If the agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

If the agreement has been varied, your duty is to provide me with a statement of the terms of the agreement as varied. Additionally, it is your duty to supply me with a full statement of account detailing all debits and credits.

As the Terms & Conditions did not comply with my CCA Request or the requirements of the Consumer Credit Act 1974, this account is unenforceable and will remain so until you properly comply with my formal request. Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a copy of a credit agreement and this limit has expired.

As you are no doubt aware, s.78(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled, while the default continues, to enforce the agreement.

As this account is clearly unenforceable, I expect to receive written confirmation that no further action will be taken and that there will be no further correspondence.

Yours faithfully

January2015

In my letter I requested

"[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]Is that the same, or sufficient for MBNA to kn[FONT=&quot]ow I meant

[/FONT][/FONT]

absolutereturn wrote: »

On the xxxx I made a formal request for a copy of the executed agreement for the above numbered account under s.78 of the consumer credit Act. In response to this request I was supplied a copy of current MBNA Terms & Conditions which did not apply at the time I took out the card. The document that you are obliged to send me is a copy of the executed agreement that contained all of the prescribed terms as defined in s.61(1) of CCA 74. If the agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

If the agreement has been varied, your duty is to provide me with a statement of the terms of the agreement as varied. Additionally, it is your duty to supply me with a full statement of account detailing all debits and credits.

[FONT=&quot]

[/FONT]

fermi

Yes, s77/8 applies to your request.

I assume you did enclose the £1 fee?

January2015

fermi wrote: »

Yes, s77/8 applies to your request.

I assume you did enclose the £1 fee?

Oh yes.....£1 postal order enclosed. Must say it's the first time I have purchased a postal order in over 20 years....they are a bit different now

pt2537

absolutereturn wrote: »

It wasn't overlooked in the letter I posted.

i never said it was, sorry, i was asked to respond to a point on twitter with a link to the thread, when dealing with MBNA agreements that originated with Abbey and were assigned to MBNA as opposed to the Virgin agreements MBNA have never been able to provide the original terms and conditions, including the PPI terms etc, hence my comment above.

fermi

January2015 wrote: »

Oh yes.....£1 postal order enclosed. Must say it's the first time I have purchased a postal order in over 20 years....they are a bit different now

Good.

MBNA may not like it, and they may squirm and try to deflect or get out of it, but they have a duty to supply all the original terms. and those as varied.

This is not a minor point. pt2537 who posted above has won cases or had them discontinued just on that. Not withstanding that it's not the same as unenforceable under s127(3).

pt2537

The letter is wrong though about the duty to provide a complete statement, if you look at s78(1)(A-C) that makes clear what must be provided.

fermi

pt2537 wrote: »

The letter is wrong though about the duty to provide a complete statement, if you look at s78(1)(A-C) that makes clear what must be provided.

Yep, that is why I wanted to go over those templates and deconstruct.

They have a fair few 'CAGisms' in them, from those days where well meaning people misinterpreted things.

Not that we haven't had our own share....