Capquest and MBNA

[charitynjw]

Re: Capquest and MBNA

From what I can see by reading back, there are 2 separate issues.
1/ Is the agreement enforceable/unenforceable via s78 CCA (& Carey v HSBC)?
2/ Is it enforceable/unenforceable outside of the narrow judgment of Carey?

As far as I can see it is s78 compliant, although the legibility aspect is a matter of opinion.....I guess the only opinion which would count would be a judge (if it came to that).*
As for 2/, much more info is needed.

However, what is the object of this particular query?
Who currently 'owns' this debt? (I suspect Capquest, but this is not confirmed).
In some cases I've seen, a challenge by the debtor as to 'enforceability' has been the trigger to the creditor issuing a county court claim.

.....mainly in case it goes to court, which I would dread.

*

123. The position here is that MBNA has produced an application form of the kind which it says would have been signed by Mr Light. It contained the prescribed terms on the reverse and also referred to a separate set of full terms and condition by which the debtor said in the form he would be bound. A blank application form has now been populated with Mr Light's name and then address. Mr Uff has raised only two points. The first is that it appears that the name and address is derived not from the actual agreement signed by Mr Light but from other electronic records kept by MBNA. Here, see exhibit "NW3" to Ms Worden's statement of 27 November 2009. But as a matter of principle I have ruled against Mr Uff on that point. That leaves his second objection which is that the copy provided is not easily legible. That is a factual issue which will have to be determined hereafter if the debtor wishes to pursue it. Otherwise the s78 copy here is compliant.

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html at 123.

[MIKE770]

Re: Capquest and MBNA

kotecha v Phoenix Recoveries. comes to mind?

[charitynjw]

Re: Capquest and MBNA

kotecha v Phoenix Recoveries. comes to mind?

Yep, along with a plethora of others.
There's much more than s78 compliance when looking at the issue of enforceability.

[charitynjw]

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

Afternoon, Di.

Glad you liked it, lol!

Maybe 'someone' who has a good grasp of Carey v HSBC could argue this & win?
I doubt very much that an LiP would have much of a chance.

Countries which have inherited the common law system see things differently. Despite the fact that it was their judges who created the common law, they now prefer to be ruled by a democratic legislature. Its members are people they voted for. Its Acts are passed after full debate, carried out in public. Almost every word in every Act is weighed and argued over through successive legislative stages. So it matters how these Acts are interpreted by the courts.

http://www.francisbennion.com/pdfs/f...aw-pt2-ch8.pdf

[digitalise]

Re: Capquest and MBNA

From what I can see by reading back, there are 2 separate issues.
1/ Is the agreement enforceable/unenforceable via s78 CCA (& Carey v HSBC)?
2/ Is it enforceable/unenforceable outside of the narrow judgment of Carey?

As far as I can see it is s78 compliant, although the legibility aspect is a matter of opinion.....I guess the only opinion which would count would be a judge (if it came to that).*
As for 2/, much more info is needed.

However, what is the object of this particular query?
Who currently 'owns' this debt? (I suspect Capquest, but this is not confirmed).
In some cases I've seen, a challenge by the debtor as to 'enforceability' has been the trigger to the creditor issuing a county court claim.


*
http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html at 123.

[MENTION=98117]warwick65[/MENTION]
Hi
yes Capquest but I am unsure as to whether they bought the debt or are managing the debt on MBNA's behalf, that is not clear.

I have enlarged the agreement so you can see better, I would like to know if they are the "Prescribed Terms" as I see nowhere that the term prescribed terms is shown.

If it was sold, could I ask for a copy of the "deed of assignment....complete and unredacted" or is that the s78 ? and the "instrument of tripartite novation" if that is still current.

I have also come across these, if they are still current also.

"And agreements pre 2006 are most likely unenforceable in any case because they dont have the prescribed terms contained within the 4 corners of the signed document"

• "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. "
  
  
  

[warwick65]

Re: Capquest and MBNA

Hi
I really would not like to say if this is compliant and enforceable - I am not a lawyer
as far as I can see the prescribed terms are there
1) The credit limit or how the credit limit will be determined
2)The rate of interest is there ( however is that the rate of interest you were charged on the original statements?)
3) How and when repayments are to be made and how much you need to pay
4) Your name and address and their name and address as well as two signatures

I think that covers it
[MENTION=5553]charitynjw[/MENTION]
I would argue that the agreement is not easily legible and there are no defaulted terms and conditions so under Carey it is unenforeceable however these can be easily rectified

Unenforecability and general consumer credit is so complicated I would not like to hazzard a guess but other issues that may arise are things such as assignment problems , have you had regular statements, was the DN good and many more

I know of someone who regularly used to pronounce agreements UE or enforceable however this is not an exact science and this person was wrong on occasion which left some people believing they were safe to stop paying when hey weren't and others to carry on paying when the agreement was junk

[charitynjw]

Re: Capquest and MBNA

the "instrument of tripartite novation"

Novation is not needed for assignment via the Law of Property Act 1925.
All that is required via s136 of the Act is for express notification to the debtor.

[digitalise]

Re: Capquest and MBNA

Novation is not needed for assignment via the Law of Property Act 1925.
All that is required via s136 of the Act is for express notification to the debtor.

[MENTION=98117]warwick65[/MENTION]

Can I ask what you would do next if you was in my position?

I am divorced from my first wife, who is named as an additional card holder.

I have really no assets, no savings left, no job, only my state pension to survive on and disability payment which only just gives me enough to survive on so long as my wife (2nd) keeps working, I am trying to earn a living by working on the internet but not yet earning any money as I want my wife to cut down on working, she is 61 this year I am 65. My credit rating will be crass after defaulting anyway, though I can manage without credit. I was a Business man until ill health hit me out the blue 10 years ago and now I feel completely useless and medication I am on makes me very drowsy and not think straight, a few years ago I would have known how to handle a situation like this, but now I am virtually useless.

I would like some ideas as to what to communicate to Capquest. Also I have not yet been requested to pay anything to Capquest.

[warwick65]

Re: Capquest and MBNA

Hi
I will tell you my tale
I was working full time and in a lot of debt
I entered a DMP
Then I lost my job and made token payments for a year
I then sent 20. Cca requests and most came back either incomplete or with an admission of no agreement

I stopped all payments
For 12 months or so it was fairly regular letter tennis, at times barely a day went by without some post

5 years on I rarely receive letters but have had one claim against me which I am currently fighting.

My worst case scenario is I set up a payment plan probably for the rest of my life of an affordable payment.

I do not currently work and it is unlilely I will in the short to medium term. Maybe a other 2-3 years

Personally, and this is not advice in any way, if it were me I would ignore for now and if they start writing respond saying they have not compiled with your cca request.

If I got a claim I would contact a solicitor and take their advice on how to play it.

If that meant me paying a few hundred quid to a proper solicitor for the right advice I would but if they thought you had a case I suspect they would take you on as a client.

I would also make sure the solicitor was someone who fought k ly for us debtors - there are some who play both sides

[digitalise]

Re: Capquest and MBNA

Hi
I will tell you my tale
I was working full time and in a lot of debt
I entered a DMP
Then I lost my job and made token payments for a year
I then sent 20. Cca requests and most came back either incomplete or with an admission of no agreement

I stopped all payments
For 12 months or so it was fairly regular letter tennis, at times barely a day went by without some post

5 years on I rarely receive letters but have had one claim against me which I am currently fighting.

My worst case scenario is I set up a payment plan probably for the rest of my life of an affordable payment.

I do not currently work and it is unlilely I will in the short to medium term. Maybe a other 2-3 years

Personally, and this is not advice in any way, if it were me I would ignore for now and if they start writing respond saying they have not compiled with your cca request.

If I got a claim I would contact a solicitor and take their advice on how to play it.

If that meant me paying a few hundred quid to a proper solicitor for the right advice I would but if they thought you had a case I suspect they would take you on as a client.

I would also make sure the solicitor was someone who fought k ly for us debtors - there are some who play both sides

Thanks Warwick65
I think @charitynjw probably thinks the agreement is legit, can Capquest take me to court without any notice to me? ie if I ignore everything and do not receive any more letters, can they take me to court without notifying me first?

[MIKE770]

Re: Capquest and MBNA

you would get notice of pending case and actions needed to do

[charitynjw]

Re: Capquest and MBNA

An interesting point.

It would appear that MBNA changed it's registered address on 18/11/93.
https://beta.companieshouse.gov.uk/c...istory?page=11
But here you have a document, presumably with the new reg address?, which has been signed on the 20th.
It may mean nothing...........may be perfectly legit.

[digitalise]

Re: Capquest and MBNA

An interesting point.

It would appear that MBNA changed it's registered address on 18/11/93.
https://beta.companieshouse.gov.uk/c...istory?page=11
But here you have a document, presumably with the new reg address?, which has been signed on the 20th.
It may mean nothing...........may be perfectly legit.

Thanks

What significance would that make?

[Debt Camel]

Re: Capquest and MBNA

@warwick65

Can I ask what you would do next if you was in my position?

I am divorced from my first wife, who is named as an additional card holder.

I have really no assets, no savings left, no job, only my state pension to survive on and disability payment which only just gives me enough to survive on so long as my wife (2nd) keeps working, I am trying to earn a living by working on the internet but not yet earning any money as I want my wife to cut down on working, she is 61 this year I am 65. My credit rating will be crass after defaulting anyway, though I can manage without credit. I was a Business man until ill health hit me out the blue 10 years ago and now I feel completely useless and medication I am on makes me very drowsy and not think straight, a few years ago I would have known how to handle a situation like this, but now I am virtually useless.

Do you have other debts as well? Roughly how large?

[digitalise]

Re: Capquest and MBNA

Do you have other debts as well? Roughly how large?

about 4k plus 3k to family