Lowell/MBNA and enforcable agreement

[The Tech Clerk]

Re: Lowell/MBNA and enforcable agreement

English law is based on common law, according to programme on BBC4 last night featuring a Harry Potter Lawyer, looks to be a series of history going back to before Magna Carta etc.

Quite interesting.

[broke]

Re: Lowell/MBNA and enforcable agreement

quick question (been doing a lot of reading and learning I hope) If i do a formal CCA and SAR this SHOULD give me an agreement and statements etc.that would tell me when the last payment was made? Would the last payment made give me the 6 yearstart point for SB or would that be from the date of a default noyice (which if I am right would be on the cra's file)

Many thanks

Broke

[broke]

Re: Lowell/MBNA and enforcable agreement

emailed niddy!!

[SaltnVinegar]

Re: Lowell/MBNA and enforcable agreement

That's why I don't suggest it cos I got lucky, there is no agreement between us and they really shouldn't have paid me off - but they did

And very frequently there is no enforceable agreement between a debtor and a creditor/DCA either, but as they keep reminding people doesn't stopping them asking for payment!

I don't then see anything wrong with turning the tables! If they are stupid enough to pay it then no harm in trying!

[broke]

Re: Lowell/MBNA and enforcable agreement

BUGGER!!!Enforcable!!!!Many thanks Niddy. Right time to abandon the other guff my plan is as follows-any suggestions would be welcome.

1 CCA request......should come back with one as i already have it.

2 SAR This should buy me some time and confirm the SB date.

3 Blag it from there on in.

4 Start a diary thread as well

Number 4 should be numer 1 i guess- i will do this and post correspondance to date on it-you can all have a giggle at the 'template letters i've already sent(plus some of my own compositions).Any thoughts on the above would be welcome and thanks for the help so far.

Broke

[broke]

Re: Lowell/MBNA and enforcable agreement

just a thought would the fact that the addresson the agreement isn't the address i applied at but one i changed to later make a difference? clutching at straws maybe but just a thought.

broke

[Undercover Elsa]

Re: Lowell/MBNA and enforcable agreement

Hi Broke,
Sorry to see it's enforceable..... onwards and upwards though!

Just for your reference, and only an issue if the beggars try enforcing right at the end of the Limitation period, the date the SB clock starts ticking (called "accrual of cause of action") depends on the circumstances.

If you were paying contractual monthly payments, then stopped and never paid anything else, the clock starts when the agreement is breached, ie the day after the first missed payment.

If, on the other hand, you had missed payments, they defaulted you, and you subsequently made any further random non contractual payments then the clock starts the day after the last payment.

Acknowledgement also resets the clock but this must be in written, signed format.

To correct a common misconception, It's nothing to do with the date of default on CRA records...this is only a rough indicator.

Once the Limitation Period has passed, it cannot be restarted, even if you went into their office with "I OWE THE MONEY" tattooed on your bare @ss.

[Undercover Elsa]

Re: Lowell/MBNA and enforcable agreement

just a thought would the fact that the addresson the agreement isn't the address i applied at but one i changed to later make a difference? clutching at straws maybe but just a thought.

broke

Does Niddy know this?...it could be key. See what he says...

[jon1965]

Re: Lowell/MBNA and enforcable agreement

I do not want to get your hopes up, but it certainly shows they do not have the original

[broke]

Re: Lowell/MBNA and enforcable agreement

Does Niddy know this?...it could be key. See what he says...

nope...occured to me after posting earlier,would it be better to pm him or ask him here?at any rate i will cca lowells they may come up with the same or different,either way it could render the account temporarily ue which lets the clock roll on.

[broke]

Re: Lowell/MBNA and enforcable agreement

LMFAO @ tattooed on arse....(on phone so cant do smilies)

[Undercover Elsa]

Re: Lowell/MBNA and enforcable agreement

The Carey judgement made it clear that the correct name and address at the time of the agreement should be included:

60
As a matter of common sense it is difficult to see how a copy of an agreement can omit the names of the parties. It might be thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above, any application of the concept of materiality must not override the requirements of s78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided:
(1) The name and address of the debtor would have appeared on the executed agreement and it is not suggested otherwise; a copy of the executed agreement would thus, without more, need to contain those details;
(2) Moreover those details are required by the Agreements Regulations. While Reg. 3 (2) (a) permits the omission of certain information about the debtor, this does not apply if the information was required by the Agreements Regulations. As the name and address is (see paragraph 13(1) above), the obvious implication from Reg. 3 (2) (a) is that it cannot be omitted;
(3) Even more tellingly, Reg. 3 (2) (c) permits the omission of the name and address from the s62 copy (of the unexecuted agreement). That surely entails the conclusion that outside the case of a s62 copy, the name and address is required; this is supported by the editors of Guest and Lloyd's Encyclopedia of Consumer Credit Law ("Guest") at p3200/l;
(4) As against this, the Defendants contend first that Reg. 3 (2) merely sets out a list of expressly permitted omissions. It does not mean that other omissions, entailed by an application of materiality, are not permitted. I disagree. Leaving aside what might be described "low level" omissions which could be cured by such an application (spelling errors, non-misleading presentational matters) the form of Reg. 3 suggests that it is providing a code for what is to be expected in a copy, as si 80 itself provided for in some detail. Any omission of any significance (which must include name and address) needs to be expressly permitted under subparagraph (2);
(5) On Reg. 3 (2) (c) specifically, it was said that this was entailed because it would usually be impossible to put a name and address in the s62 copy which would be presented to the debtor (for example as in the worked example) in a booklet available to all prospective applicants, before he had engaged in the application process. I follow that, but I do not see why that deprives the point made in subparagraph (3) above of its force. Indeed, it may suggest that there had to be a compelling reason (impossibility as Mr Mitchell put it in paragraph 16 (c) of his written submissions) before the omission of the name and address could be contemplated.
(6) It is also said that this view of Issue 1 (c) will place an unnecessary (and perhaps impossible) burden on lenders because it may be hard to find the original address or it may have been lost altogether because for example it was electronically overwritten by a later address. This is of course possible in theory but it is noteworthy that in the cases before me, it was not suggested that the creditors concerned could not have produced a name and address if necessary and that included the case of Yunis where none was provided, in part to keep the lis generated by that case, alive; (I canvassed this point with Ms Tolaney for HSBC on Day 2 p59 but in the event no further submissions from HSBC as to the practicality of providing in some way the original name and address were made, on the basis that there was no evidence available on the point);
(7) I am mindful of the theoretical scenario postulated which compares a failure to provide a name and address in the executed agreement itself and a similar omission in the s78 copy. In the former case, to omit the address would lead to an IEA but one which the Court could enforce under sl27 (1). On the other hand, assuming that the address was indeed on the original executed agreement but the s78 copy omitted it, the result would be continuous unenforceability under s78 (6) until and unless the address were found and inserted into or onto the reconstituted copy. The more serious state of affairs is the former yet the latter yields the harsher consequence. In abstract terms that is correct - but I have serious doubts as to whether the latter is likely to arise. See sub-paragraph (6) above;
(8) It is further said that the provision of the name and address to the very person who can be expected to know it is unnecessary and pointless. But part of that submission relies on the broader argument that the purpose of s78 and the Copies Regulations is the Current Information Purpose. However, as explained in relation to Issue 2 below, I think that is too narrow a meaning. And if - as I find in relation to Issue 2 - a copy of the original executed agreement (albeit reconstituted if the creditor wishes) is still necessary where there have been later variations, there is no reason why the copy should not, equally, include the name and address of the debtor at that time.

Again, see what Niddy says, he's the man

[Undercover Elsa]

Re: Lowell/MBNA and enforcable agreement

I wouldn't bother pm'ing Niddy...he's like Terminator...he vill be back....

[mgfboy]

Re: Lowell/MBNA and enforcable agreement

The Carey judgement made it clear that the correct name and address at the time of the agreement should be included:



Again, see what Niddy says, he's the man

I wouldn't read to much into the address point, my HSBC agreement that I just settled on didn't have the address on but it still may have held up in court.

[jon1965]

Re: Lowell/MBNA and enforcable agreement

If you read what Niddy has said to Flossy in her thread , it may still be useful. Also looking at P1's CPUTR thread if they do not have the original they may be in trouble.
My understanding is, complying with S77-79 is not all that is required to make an agreement enforceable in court, but way too complicated for me to explain