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Piesky V RBS Mint

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  • Piesky V RBS Mint

    HI,

    I sent a CCA request to Mint at the end of December and have now had a reponse including a copy of the agreement and prescibed terms. Can someone have a look at these for me and comment as to their compliance.

    Many thanks

    Piesky

  • #2
    Re: Piesky V RBS Mint

    Here is the 1st Pdf File
    Last edited by piesky; 14th May 2009, 12:29:PM.

    Comment


    • #3
      Re: Piesky V RBS Mint

      here's 2nd page
      ------------------------------- merged -------------------------------
      Problems loading the other 3 pages but they are just the terms and Conditions on 3 seperate A4 sheets
      Last edited by piesky; 19th February 2009, 12:46:PM. Reason: Automerged Doublepost

      Comment


      • #4
        Re: Piesky V RBS Mint

        Oh goody.
        What you have here is a non-compliant mailer app.
        The fact the T&C contain the prescribed terms is immaterial in this case, as ALL pre May 2005 agreement MUST contain the terms within the signature document.
        This doesn't so it isn't !!

        Comment


        • #5
          Re: Piesky V RBS Mint

          What would be the best response to this one Curlyben? Their letter accompanying this says the following:

          Thank you for you letter received into this office on 5th January.

          Your written request for information made under s78(1) of the CCA must be accompanied by a fee of £1, which we have received and has been applied to your account accordingly. We are obliged to provide you with a true copy of the credit agreement and a statement of financial information relating to the account, namely the state of the account, amount currently due, with amounts and due dates of future payments that still require to be made. In terms of CCA copy document regulations, the 'true' copy requirement can be satisfied by providing a copy agreement at the date the card agreement was made and providing that plus a copy of the current terms of the card agreement.

          I have enclosed the s78(1) information.

          With regard to your request for a statement of account, I have enclosed the most recent available statement for the above account. Should you require duplicate statements of your account prior to this date, please contact me accordingly and I will advise you of the cost of these.

          Our records show that there is still a balance outstanding on your account. As you are aware, your account is currently being managed by our collections department. Therefore, you should contact them to to obtain details of your required repayments to settle your account.

          I trust the above clarifies matters for you. Blah, blah
          ------------------------------- merged -------------------------------
          letter was signed by Ms N Berry, Senior Recoveries Officer
          Last edited by piesky; 19th February 2009, 13:11:PM. Reason: Automerged Doublepost

          Comment


          • #6
            Re: Piesky V RBS Mint

            Here's the second page.
            Last edited by piesky; 14th May 2009, 12:29:PM.

            Comment


            • #7
              Re: Piesky V RBS Mint

              yep, now they could relate to anything at all.

              Comment


              • #8
                Re: Piesky V RBS Mint

                Hi, Have received the following letter from Mint today. Any advice please. This is getting stupid. Does their original response comply? and should I now SAR them?

                Regarding your recent letter Blah blah,

                Any request for a copy of an executed agreement under s78(1) states that the company must meet its statutory requirements by providing a true copy of the agreement relevant to the card product at the date the card agreement was made, plus a copy of the terms and conditions of the card product. These copies should be accompanied by the stement of financial info relating to the account.

                When responding to requests under section 78 we are compliant if we provide a 'true copy' of the agreement in accordance with regulations 3(2) and 7 (1) (b) of the consumer credit (cancellations and copies of documents) regulations 1983. This means that there is no obligation for us to provide a copy of the original agreement bearing signatures. Additionally, under regulation 3(2) a 'true copy' does not need to contain all personal information relating to the borrower, nor does it need to include a signature box or dates of signatures.

                We have supplied a copy of the credit agreement that you agreed to after which you then received your credit card. We have also supplied a copy of the original and current terms and conditions of that card product with the prescribed terms and a statement showing the outstanding balance. We have advised you who you need to contact to discuss amounts due and owing and future payments that must be paid. We have therefore met our obligations under s78(1) to provide a copy of that executed agreement and again we are satisfied that what was provided complied with the regulations expressly made for controlling what is a true copy.

                I must therfore inform you that we see no reason to enter into further correspondence with you about alleged CCA breaches . If you are not satisfied with the response, you may seek whatever legal redress you consider is open to you.

                We do not consider this account to be in dispute and your indebtedness on this account remains due and payable and we will be pursuing for the full repayment. Any non payment on the account will be recorded on your credit file as will a default if non payment continues.

                I suggest you take advice from your local Citizens advice Bureau or other similar organisation if you continue to doubt the veracity of what we have told you about our having complied with our obligations under s78)1).

                I trust this clarifies matters for you.

                Yours sincerely

                Miss H Bennett
                Correspondence
                Cards Customer Services
                ------------------------------- merged -------------------------------
                This is the letter sent to them on 19th Feb.

                [FONT='Times New Roman','serif']17 February 2009[/font][FONT='Times New Roman','serif'][/font]
                [FONT='Times New Roman','serif'] [/font]
                [FONT='Times New Roman','serif']Dear Sir/Madam[/font]
                [FONT='Times New Roman','serif'][/font]
                [FONT='Times New Roman','serif']Account in Dispute Re: [/font]

                Thank you for your recent letter, the contents of which are noted.
                However, your reply does not fulfil the requirements under the Consumer Credit Act 1974.
                The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated 31st December 2008 and duly acknowledged by you. Upon receipt of the original request the specified account legally entered into disputed status. However, my request remains outstanding.
                You have sent a copy of a pre-contractual mail application form and photo-copies of the terms and conditions on three separate sheets of A4 paper. As you will be aware, under SI 1983/1553 the prescribed terms MUST be within the signature document to be valid, having them on a separate sheet headed T&C or similar ISN'T acceptable.
                [FONT='Times New Roman','serif']That was confirmed in the Court of Appeal in 2007 in the case:[/font]
                [FONT='Times New Roman','serif'] [/font]
                [FONT='Times New Roman','serif']Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)[/font][FONT='Times New Roman','serif'][/font]
                This applies to all agreements pre May 2005.
                As you must realise the document sent does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.
                You had until 17th January 2009 to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party). To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this. The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.
                The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence.
                Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards.
                To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.
                I would appreciate your due diligence in this matter and look forward to your reply.
                Yours faithfully,
                Last edited by piesky; 12th March 2009, 00:56:AM. Reason: Automerged Doublepost

                Comment


                • #9
                  Re: Piesky V RBS Mint

                  Here we go again.

                  Why do they insist on quoting this SI as it only makes them look stupid.
                  ------------------------------- merged -------------------------------
                  Throw this at them,


                  Dear Plank
                  Account Reference Number xxxx xxxx xxxx xxxx

                  Account in Dispute


                  I write further to your letter of DATE and my reply of DATE.

                  As you are clearly unaware the enclosed documentation in no way complies with the Consumer Credit Act 1974 (CCA) insofar as it is completely lacking any of the prescribed terms required for a credit agreement.

                  The prescribed terms specified in Schedule 6 of Consumer Credit (Agreements) Regulations 1983 SI 1553 are as follows:
                  * credit limit
                  * repayments
                  * rate(s) of interest
                  There is no mention of any of these terms in the MBNA Application form and, as such, this document has no validity in law as a regulated credit agreement.

                  As such, this is a clear breach of s61(1) of CCA:
                  61(1) A regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and the document embodies all the terms of the agreement, other than implied terms, and the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.
                  Furthermore this document is totally unenforceable in a court of law as laid out in CCA s127(3):
                  127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself
                  containing all the prescribed term of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).
                  To quote the Judge in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:
                  33 In my judgement the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.
                  Also in the case of Wilson v First County Trust Ltd [2001] 3 All ER 229, Sir Andrew Morritt said:
                  26 The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in s127(3) of the 1974 Act which is incompatible with convention rights. It was said, in effect, in relation to Art 1 of the First Protocol, that, where there was no document signed by the debtor - or where the document signed by the debtor did not contain all the prescribed terms of the agreement - neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant 'possessions' to the peaceful enjoyment of which it was entitled, or of which it was deprived by s127(3) of the 1974 Act. In effect, the creditor - by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms - must (in the light of the provisions in ss65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid; so there is nothing to engage the rights guaranteed by Art 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the convention is not in point.
                  So, in summary, the lack of prescribed terms renders this agreement unenforceable and the monies a gift that was never intended to be repaid.

                  I would point out that the sums you have received from myself in respect of this ‘debt’ were paid under this clear Mistake in Law. Payments were made in the belief that the contract was valid, enforceable and compliant with the requirements of the Consumer Credit Act 1974 and subsequent Statutory Instruments.

                  The recent judgement in Sempra Metals v Inland Revenue, show that Restitution and compensation at contractual rates are available at common law for money paid in mistake. As such, there are clear grounds for making a claim for Restitution in this case, and I am certain that a Judge would look at your actions in this case in a very unfavourable light considering your continued unlawful pursuit of this matter.

                  Swift resolution of this matter without the need for court action would be preferred but, for the avoidance of doubt, any legal action by you shall be vigorously defended and I will make a counterclaim against RBS Mint for repayments of monies paid plus interest calculated at the current contractual rate of XX%, as well as damages at the Court discretion. This is the level at which a court would award payment in this case.

                  I now have the option of reporting you to the Office of Fair Trading and Trading Standards in relation to these matters. However, prior to doing this, I am giving you the opportunity to suggest an acceptable conclusion to us both in this matter. Please be advised that if you follow up to this letter with further threats I will not hesitate to take matters further and as suggested and without further notification. I will also make an official complaint to **COUNTY** Police force under the Protection for Harassment Act 1997, Administration of Justice Act 1970 and Fraud Act 2006.

                  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 sincerely

                  Mr Rogue Debtor.
                  Last edited by Curlyben; 12th March 2009, 09:41:AM. Reason: Formatting

                  Comment


                  • #10
                    Re: Piesky V RBS Mint

                    Thanks Curlyben, That certainly is a strong letter. Did this work for you?

                    Comment


                    • #11
                      Re: Piesky V RBS Mint

                      Admittedly I haven't needed to use this as yet, but I know a few members that have, and thanks to them.

                      IF they still refuse after this ask them for their Final Response and make a formal complaint to the FOS.

                      Comment


                      • #12
                        Re: Piesky V RBS Mint

                        Hi, (particularly Curlyben)

                        Hi have received a further response from Mint and it seems they are totally confident that the agreements sent will hold up in court should I wish to proceed down that route. It reads as follows:

                        Dear piesky,

                        Regarding your recent letter concerning the banks alleged breach of the CCA, I would advise you of the following.

                        Any request for a copy of an executed agreement under s78(1), states that the company must meet its statutory requirements by providing a 'true copy' of the agreement relevant to the card product at the date the card agreement was made, plus a copy of the terms of the card product. These copies should be accompanied by the statement of financial information relating to the account.

                        When responding to requests under s78 we are compliant if we provide a 'true copy' of the agreement in accordance with regulations 3(2) and 7(1) (b) of the Consumer Credit (Cancellation Notices and copies of Documents) regulations 1983. This means that there is no obligation for us to provide a copy of the original document bearing signatures. Additionally, under regulations 3(2) a 'true copy' does not need to contain all personal information relating to the borrower, nor does it need to include a signature box or dates of the signatures.

                        We have supplied a copy of the credit agreement that you agreed to after you received the credit card. We have also supplied a copy of the original and current terms and conditions of that card product with the prescribed terms and a statement showing the outstanding balance. We have advised you who you need to contact to discuss the amounts due and owing and future payments that must be paid. We have therefore met our obligations under s78(1) to provide a copy of that executed agreement and again we are satisfied that what was provided complied with the regulations expressly made for controlling what is a 'true copy'.

                        I must therefore inform you that we see no reason to enter into further correspondence with you about alleged CCA breaches. If you are not satisfied with this response, you may seek whatever legal redress they consider is open to you.

                        We consider that our processing of your personal data is fair, lawful and warranted in the circumstances. Details of these procedures were contained in the credit agreement/application form which you signed when you applied for the card. Thereafter the credit card was issued to you. Amended versions accompanied Notice of Variations notified to the ICO and sent to you when the card was in use. You did not, at any time, signify your refusal to consent by repaying the debt and terminating the agreement. We are satisfied that information of the account was properly notified to the credit reference agencies and you would have received the appropriate Data Protection Act notifications on the reporting of any defaults.

                        I would inform you that, given the processing of you personal data was consented to by you (in the way described above), you cannot retrospectively withdraw your consent after the processing has been carried out. We DO NOT accept your notice under section 10 of the Data Protection Act 1998 and DO NOT intend to comply with it.
                        If you disagree, you have the right to apply to the court to have inaccurate personal data rectified, blocked, erased, or destroyed. Further information is availablefrom the information commissioners website.

                        We do not consider this account to be in dispute and your indebtedness on this account remains due and payable and we will be pursuing for the full repayment.
                        Any non payment of the account will be recorded on your credit file as will a default if non payment continues.

                        I trust this clarifies matters for you.

                        yours faithfully

                        Senior recoveries officer.

                        Comment


                        • #13
                          Re: Piesky V RBS Mint

                          bump

                          Comment


                          • #14
                            Re: Piesky V RBS Mint

                            We have supplied a copy of the credit agreement that you agreed to after you received the credit card.
                            Hmmm...... :confused2: I'd question this point!

                            We DO NOT accept your notice under section 10 of the Data Protection Act 1998 and DO NOT intend to comply with it.
                            I might have missed something here but I can't see any reference to this on this thread.

                            Amazing how these institutions apply their bully-boy tactics - shame we can't say the same to them when they issue a default notice!

                            Basically they have carte blanche to do what they like with our credit files - dispute or no dispute - and there ain't a damn thing we can do about it .... YET!! I'm sure someone will find a loophole if they look deep enough.

                            Hopefully CB will be on shortly to advise

                            jax

                            Comment


                            • #15
                              Re: Piesky V RBS Mint

                              Thanks Jax, yes I hope someone can advise further on this. I am now wondering if I should send the SAR request and send copies of letters to the FOS and other relevant bodies.

                              Comment

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