HELP - CCA advice please

fermi

fiveyearplan wrote: »

If it did have a back page or page 2 don't you think we should have to initial it? Otherwise anything could be put in without our knowledge.

I don't believe so, if it forms part of the same signature document.

kel123_2

I agree with firmi aslong as somewhere on the the front it says with ref to terms and conditions overleaf then no initials are required.

The only 2 things I can see wrong with this are

1. A term stating the rate of interest to be applied to the credit issued under the agreement (127(3)

2. The cooling off period being removed because they knew you where out of the country

Both parties have signed, the credit limit is not on, this is not present on the first page but I believe it can be within the T & C to be agreed/advised at a later date

rog2

kel123 wrote: »

The cooling off period being removed because they knew you where out of the country

How can this be legal?

I accept that the 'page 2' is, indeed, part of the same 'document', but I remain unconvinced that it will satisfy expert scrutiny as a legally enforceable 'consumer credit agreement' which is why I suggest that fyp take legal advice, at least from one of the experts at the debt charities.

fermi

A document being improperly executed is not the same as being unenforceable through the courts. It's only if the agreement is missing the prescribed terms that s127(3) precludes the court enforcing the agreement.

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft786a.pdf

1.20 What if an agreement is not properly executed?

S65(1) provides that an improperly-executed regulated agreement is enforceable against the debtor on an order of the court only.

S127(1) provides that the court must dismiss an application for an enforcement order if it considers it just to do so, having regard to:

• prejudice caused to any person by the contravention in question, and the degree of culpability for it; and
• the powers conferred on the court by s127(2), s135 and s136 – see Q1.22.

This is however subject to s127(3) and (4) – see Q1.21.

1.21 Is an improperly executed agreement always enforceable with a court order?

S127(3) precludes the court from making an enforcement order if s61(1)(a) (signing of agreements) was not complied with, unless:

• a document (whether or not in the prescribed form) was signed by the debtor (whether or not in the prescribed manner);

• the document contains all the prescribed terms of the agreement – see Q1.14.

I agree it stinks though.

If it's missing a prescribed term in this case, the outlook may be better. But I agree some expert advice is needed.

fiveyearplan

Here's a quick update. After sending in our defence, we received a letter from the court saying they will send our defence to MBNA and they have 28 days to come back to address these issues. If they don't come back within 28 days it gets put aside but they can come back anytime after that with correct documentation (I'll have to read that bit more carefully to make sure!).

MBNA have sent me back 4 pages of terms and conditions with no dates or anything. They didn't address any of the other things we put in our defence either.

So far... looking good!

SPANIEL36

thanks for the update, good luck

Chocmonster7

fiveyearplan wrote: »

Here's a quick update. After sending in our defence, we received a letter from the court saying they will send our defence to MBNA and they have 28 days to come back to address these issues. If they don't come back within 28 days it gets put aside but they can come back anytime after that with correct documentation (I'll have to read that bit more carefully to make sure!).

MBNA have sent me back 4 pages of terms and conditions with no dates or anything. They didn't address any of the other things we put in our defence either.

So far... looking good!

This thread had gone very quiet - any news on what happened?

fiveyearplan

Yes, we've had to send in an allocation questionnare and after stating on there that we didn't want to wait another 28 days we got back notification from the court stating "all parties have agreed to a 28 day stay..." That was a lie because we specifically said no to that! Anyway the 28 days has now passed and we had to send in another AQ on 28th July and now we are waiting to hear back!

I've been getting advice from CAG and will post again when we next hear something.

Are you going through anything similar?

fermi

Oops! Just noticed that you had a second thread on the allocation questionnaire.

Will have to catch up with that later.

Chocmonster7

fiveyearplan wrote: »

Are you going through anything similar?

Have done a CCA with MBNA and received an illegible photocopy of my application form. Just reading through MBNA threads on here and other sites to decide on my next course of action.