Capquest and MBNA

[digitalise]

Re: Capquest and MBNA

Hi
I dont know whether its unenforceable or enforceable, just trying to find out.

do you know if this is correct
"However, under the law, a credit agreement is only binding if it is a single document that has been signed by both parties and contains all the prescribed terms. "

I was classed as a special case because I was always paying ontime since 1992, and I wrote to them after my health deteriorated and could no longer work, so after paying MBNA and other debts out of savings for a few years whilst trying to figure out working from home on the internet, my funds dwindled away so I explained to MBNA what had happened and I suppose I was lucky enough to be treated as a special case because I was upfront with them all along, they stopped all interest charges and all I had to do was pay what I could afford as and when I could, so sometimes it might be £20 sometimes £5 sometimes nothing. and I am still trying to work from home! but not yet making any real money but hopefully that will come.

[warwick65]

Re: Capquest and MBNA

Hi
I dont know whether its unenforceable or enforceable, just trying to find out.

do you know if this is correct
"However, under the law, a credit agreement is only binding if it is a single document that has been signed by both parties and contains all the prescribed terms. "

I was classed as a special case because I was always paying ontime since 1992, and I wrote to them after my health deteriorated and could no longer work, so after paying MBNA and other debts out of savings for a few years whilst trying to figure out working from home on the internet, my funds dwindled away so I explained to MBNA what had happened and I suppose I was lucky enough to be treated as a special case because I was upfront with them all along, they stopped all interest charges and all I had to do was pay what I could afford as and when I could, so sometimes it might be £20 sometimes £5 sometimes nothing. and I am still trying to work from home! but not yet making any real money but hopefully that will come.

Ok

well the problem with unenforecability is that it takes a judge to rule however the basics of your highlighted statement could be correct for a pre 2007 agreement , however, contrary to what some people say, it is not always necessary to show a copy just to demonstrate that on balance there was one

Again however, there are far more ways for an agreement to be Unenforceable
It is no secret that [MENTION=87380]Diana M[/MENTION] has won a couple of cases brought against her , one I believe she won because there was no signed credit agreement and the default notice was bad, another was won because amongst other things, the new owners could not rpove they did actually own the debt

Personally i don't think what you have been sent is enforceable because it does not fulfil S78 , and I also do not think there is a link between the document you signed and the terms and conditions but if I were you and had a claim brought against me I would be asking a solicitor for an opinion as to if I had a case and seeing if they would take on my defence.

I say that for two reasons,
1) I believe the justice system is inherently biased against the ordinary person particularly where money claims are concerned
2) A specialist solicitor will have grater knowledge and understanding than I ever could have- it is one thing knowing the law, it is another thing practising it

[Amethyst]

Re: Capquest and MBNA

Just quickly re the link between signature page and terms [MENTION=98117]warwick65[/MENTION] there is a paragraph just above the signature box that says

I accept and agree to be bound by the MBNA Visa Card Conditions of Use (as set out overlead and as amended from time to time)

( just as you mentioned no link )

[digitalise]

Re: Capquest and MBNA

Sorry, what link?

[warwick65]

Re: Capquest and MBNA

Hi Amethyst
Thanks you have better eyes than mine
[MENTION=106506]digitalise[/MENTION]

there seems to be a link between what you signed and the terms and conditions so if those terms and conditions do contain the prescribed terms it may be enforceable but as I said, I can not read what they sent and the devil is in the detail

It would be very wrong of me to tell you what you should do and as you have made some payments recently the debt is far from statute barred.

Something that may impact your decision ( and indeed how creditors react) is if you have any assets such as a home

I do find it remarkable that the creditor can produce what at first sight looks like the genuine article some 26 years after the event

[digitalise]

Re: Capquest and MBNA

Hi Amethyst
Thanks you have better eyes than mine
@digitalise

there seems to be a link between what you signed and the terms and conditions so if those terms and conditions do contain the prescribed terms it may be enforceable but as I said, I can not read what they sent and the devil is in the detail

It would be very wrong of me to tell you what you should do and as you have made some payments recently the debt is far from statute barred.

Something that may impact your decision ( and indeed how creditors react) is if you have any assets such as a home

I do find it remarkable that the creditor can produce what at first sight looks like the genuine article some 26 years after the event

I cannot see any link anywhere on the page that leads to anywhere.

Assets, I no longer have anything of consequence

I have emailed the lady solicitor that you mentioned but have had no reply as of yet.

[warwick65]

Re: Capquest and MBNA

I cannot see any link anywhere on the page that leads to anywhere.

Assets, I no longer have anything of consequence

I have emailed the lady solicitor that you mentioned but have had no reply as of yet.

It doesn't have to be a physical link, just a reference to where the terms are e.g the attached or overleaf or accompanying

It is of course easier to make a denial of them being present when it says accompanying or attached but overleaf is a little more difficult

There is no doubt in my mind that it does not comply with S78 but that can be put right

[digitalise]

Re: Capquest and MBNA

It doesn't have to be a physical link, just a reference to where the terms are e.g the attached or overleaf or accompanying

It is of course easier to make a denial of them being present when it says accompanying or attached but overleaf is a little more difficult

There is no doubt in my mind that it does not comply with S78 but that can be put right

Thanks Warwick65
Can you point out where this link/reference/overleaf is? I am having difficulty in finding what you are talking about.

[digitalise]

Re: Capquest and MBNA

It doesn't have to be a physical link, just a reference to where the terms are e.g the attached or overleaf or accompanying

It is of course easier to make a denial of them being present when it says accompanying or attached but overleaf is a little more difficult

There is no doubt in my mind that it does not comply with S78 but that can be put right

The only thing above the signature box is

"YOUR RIGHT TO CANCEL
Once you have signed this agreement, you will have for a short time a right to cancel it.
Exact details of how and when you can do this will be sent to you by post by the Bank"

That is the exact wording.

I need to reply this weekend to Capquest as I have now had the agreement 6 days so I must reply this weekend. Do you have any ideas as to what I should reply? Should I ask for the prescribed Terms and Conditions, and a account of payments and interests? I really do not know what to do. Having never been in this position in my whole life before I find it somewhat daunting.

- - - Updated - - -

Thanks Warwick65
Can you point out where this link/reference/overleaf is? I am having difficulty in finding what you are talking about.

The only thing above the signature box is

"YOUR RIGHT TO CANCEL
Once you have signed this agreement, you will have for a short time a right to cancel it.
Exact details of how and when you can do this will be sent to you by post by the Bank"

That is the exact wording.

I need to reply this weekend to Capquest as I have now had the agreement 6 days so I must reply this weekend. Do you have any ideas as to what I should reply? Should I ask for the prescribed Terms and Conditions, and a account of payments and interests? I really do not know what to do. Having never been in this position in my whole life before I find it somewhat daunting.

[warwick65]

Re: Capquest and MBNA

Hi
Sorry for the late reply

If you look at post 18 where Amethyst points out the link that I can just about see.

I am going to make two assumptions here
1) You sent a formal S78 request with the £1 fee
2) What you posted is all you received back

I would write back to capquest with something like:

Dear Sir
Thank you for your letter dated xxxxxx which was your response to my S78 request dated xxxxxx

As you will be aware, what you sent does not comply with the requirements of S78 and therefore the account remains unenforecable. I refer you to Emma Carey v HSBC

Yours faithfully

These are just my thoughts and others may have different ideas [MENTION=5553]charitynjw[/MENTION] [MENTION=6]Amethyst[/MENTION]

I know some people would say just ignore but generally I like to have the last letter in the chain but I am a stubborn sod

[charitynjw]

Re: Capquest and MBNA

[MENTION=98117]warwick65[/MENTION]

Lol.....one of my hobby horses.

s189 CCA

“executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

& from the late Francis Bennion (draftsman of the CCA)
http://www.francisbennion.com/pdfs/f...espondence.pdf

[digitalise]

Re: Capquest and MBNA

Hi
Sorry for the late reply

If you look at post 18 where Amethyst points out the link that I can just about see.

I am going to make two assumptions here
1) You sent a formal S78 request with the £1 fee
2) What you posted is all you received back

I would write back to capquest with something like:

Dear Sir
Thank you for your letter dated xxxxxx which was your response to my S78 request dated xxxxxx

As you will be aware, what you sent does not comply with the requirements of S78 and therefore the account remains unenforecable. I refer you to Emma Carey v HSBC

Yours faithfully

These are just my thoughts and others may have different ideas @charitynjw @Amethyst

I know some people would say just ignore but generally I like to have the last letter in the chain but I am a stubborn sod

Thanks for your response,
found that wording now!

You still think then that is is unenforceable?

Have sent [MENTION=5553]charitynjw[/MENTION] a pm hopefully she will reply, I dont generally like ignoring letters and like you I like to have the last of the correspondence! mainly in case it goes to court, which I would dread.

[digitalise]

Re: Capquest and MBNA

@warwick65

Lol.....one of my hobby horses.

s189 CCA


& from the late Francis Bennion (draftsman of the CCA)
http://www.francisbennion.com/pdfs/f...espondence.pdf

Hi
Sorry I missed this response and have just PM'd you.

I am I think a bit thick when it comes to this legal Jargon, I do not understand the implications of what you have posted at all, you you explain simply if this in your opinion is enforceable or not? Many thanks

[Diana M]

Re: Capquest and MBNA

& from the late Francis Bennion (draftsman of the CCA)
http://www.francisbennion.com/pdfs/f...espondence.pdf

Thank you for that gem

Now you can see why arguing unenforceability in court takes so long !

I too liked the cake analogy.

Di

[digitalise]

Re: Capquest and MBNA

Thank you for that gem

Now you can see why arguing unenforceability in court takes so long !

I too liked the cake analogy.

Di

Thank you for replying, but I am still at a loss as to what it actually means, do i accept the agreement that was sent to me or not?
I need to craft a reply to capquest tomorrow and I am totally unsure of what to write.