CCA query

sourcrates

It's a difficult one, as certain creditors will go quiet when you tell them they have not complied, and you never hear from them again, then there are those which these two guys are "arguing" about, who go to litigation !!

Best advice is tread carefully !!

absolutereturn

pt2537 wrote: »

Haha , but youre right some of the templates are out of date. I was looking back over my emails from 2009 when some of the claims management companies were sending group emails stating if the original credit agreement had been lost then the agreement could never be enforced. One of the biggest errors of law ever.

In pre-Carey days, if the agreement couldn't be found they couldn't have responded to a s.78 request, there is nothing in s.78 saying an agreement can be reconstructed, or is it reconstituted?

pt2537 wrote: »

What about the Iron mountain storage fire which wiped out most of GEs credit agreements?? under the CMC approach GE Money would have been bankrupted overnight through a arsonist!!! The Courts were quick to knock that on the head in Carey

Not surprising, although I doubt Waksman was thinking about GE, more to do with the fact that there were 1000s of cases being taken to court to have the agreements ruled unenforceable. Had he not ruled the way he did, the credit industry would have put a contract on his head! :rotfl:

Also a bit odd for a partner in a law firm to be taking her creditor to court to have her account ruled unenforceable. :whistle:

absolutereturn

sourcrates wrote: »

It's a difficult one, as certain creditors will go quiet when you tell them they have not complied, and you never hear from them again, then there are those which these two guys are "arguing" about, who go to litigation !!

Best advice is tread carefully !!

For some reason, these days banks rarely go to litigation themselves. :think: If you look at claims issued in the past couple of years or so, you'll find they are all issued by debt purchasers. Banks seem to prefer selling the debts for peanuts rather than starting proceedings to recover them.

fermi

Not forgotten this. Just got sidetracked a touch more than I thought.

January2015

fermi wrote: »

Not forgotten this. Just got sidetracked a touch more than I thought.

No problem - I've been sidetracked. New grandchild born this week

fermi

OK. Rather than another copy/paste template, it's probably better to just bullet point the essential points to get across in any letter.

You can then put that in your words or use ones as posted previously if they suit.

A reply would state:

• You made a formal request under s78 of the Consumer Credit Act 1974 on dd/mm/yyyy for a copy of the credit agreement and any document referred to in it, and a statement of account.
• That to date, MBNA have failed to provide the required documents.
• That a supplying a copy of current terms and conditions does not satisfy a request under s78
• Carey vs HSBC Bank PLC and FCA CONC 13.1 confirm that:

CONC

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.

Carey

If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

• The documents supplied do NOT satisfy these requirements.
• A statement of account to comply with the terms of s78(1) should also be supplied.
• As the requirements of s78 have not been met, the account is therefore unenforceable under s78(6) until MBNA fully comply. Quote 78(6) if you feel like it, as templates above do.
• Perhaps also say that MBNA are reminded that CONC 13.1.6 states:

"In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement."

"The firm should, in any request for payment or communication relating to a payment (other than a statement issued in accordance with the CCA or regulations made under it which does not constitute or contain a request for payment) in such cases, make clear to the customer that although the debt remains outstanding it is unenforceable."

"However, where a firm is aware that an agreement is unenforceable because of non-compliance with an information request under section 77, 78 or 79 of the CCA, a firm should make it clear when communicating to a customer about a debt that the debt is in fact unenforceable. Failure to do so, in that case, would in the FCA's view unfairly mislead the customer by omission. Any communication that implies expressly or otherwise that a debt is enforceable when it is known that it is not, would be misleading."

• That you await MBNA's response
• That MBNA are warned that any attempt by them to misrepresent what they have supplied or may supply as being in compliance with s78 when it is not, WILL be reported to the FCA as deceptive and misleading conduct.

fermi

Some people may say keep it simpler, or do not tell them in detail what they have done wrong.

Then again, MBNA are not as stupid as they may make out, or at least not everyone there is, so personally I think it's best to let them you know what you are on about and that you will not tolerate any silly games or misrepresentations from them. Then ball is very very very firmly in their court.

January2015

Fermi - thank you so much for this. I really do appreciate this. You are a star.

January2015

No response from MBNA yet. However, letter received from PRAT group advising they have purchased this debt (lucky them )

Do we just respond and advise that we wrote to CC company on x dates and requested CCA under S78 and until they comply the debt is unenforceable? Is there a standard letter/wording anywhere?

Thanks for you help

glentoran99

So you send a CCA request to MBNA and suddenly they sell they debt, looks like they cant find it