MBNA Fos Say Application Form Is A Cca Agreement!

[gemspan]

Hi there

 

I've had 3 complaints in with the FOS for the last year. They have only just got round to dealing with them!!! Anyway, all 3 were mere formalities and I sent the complaints because I was getting nowhere with the banks.

 

All complaints are in connection with contravention of the CCA in relation to non-existent agreements. I have been sent photocopy application forms. The first complaint was a bit different but the other 2 were straightforward ie an application form is not a consumer credit agreement because it has no prescribed terms.

 

I received a letter from an adjudicator last week advising me that he had not upheld my complaint because I had signed the application form. He upheld in favour of MBNA on this basis. He did advise me that this was to be dealt with purely on a statutory duty and enforcement basis.

 

I have written back stating the terms of the CCA 1974 which outlines the prescribed terms. I have asked him to advise me where these prescribed terms are visible in the application form he has.

 

I also advised him that he was misleading me into believing that an application form is an enforceable document when indeed it is not.

 

I await hearing from them.

 

Has anybody else has this type of judgement on their complaint with FOS? I'm astounded because they should know that law inside out and if they dont then they shouldnt be responsible for dealing with complaints. Also, it appears to me that they are not an unbiased organisation. They are clearly on the side of the financial institutions which, really, doesnt surprise me because that is where they make their money.

 

This is so unjust!!!

 

Gemspan

[lickthewallfatboy]

but the fact remains,a judge hasn't said it's an agreement

 

and if you get a judge who does,he's already been overruled by the House of Lords

 

ultimately,if an agreement hasn't got the necessary details included,it is unenforceable

[42man]

The FOS are very weak in my opinion, and seemingly for the most part, take sides with the banks.....they also don't think that calling somebody 9 times a day is harrassment....truth be told it is what a judge says.

[gemspan]

Hi there

 

Yes I agree with you both but what worries me is that this is an organisation who is there to deal with complaints relating to the Financial Services Industry. Its the only place you can go without going to court.

 

The people handling these claims should be fully versed in the Consumer Credit Act 1974 and abide by the Act. I'm able to fight back, but what about the people who take what they say as gospel? Its terrible!!

 

The FOS state:

 

The matter is clearly one of statutory duty and enforceability of a credit agreement. It is evident that you signed the credit agreement and received the benefit of the money from MBNA and accordingly you are liable for the debt outstanding on the account...... I would advise that in relation to your Section 78 of the Consumer Credit Act request, the Law does not require a lender to provide copies of the credit agreement which show the original signatures. However, a copy of your application form, signed and dated by you, was provided by Alliance & Leicester......

 

You are liable to the debt oustanding on your MBNA credit card and as you breached the credit agreement (what credit agreement?) a default has been registered on your credit reference file. In view of this, I have to tell you that I am unable to recommend that your complaint should be upheld. I appreciate that this is likely to come as a disappointment to you. I know that this is not the outcome you were hoping for. But I hope that my explanation has been helpful in setting out clearly why I have taken this view....

 

They are clearly overlooking the fact that I didnt sign a credit agreement. I signed an application form which doesnt set out any credit limit, rate of interest etc., etc., As far as he knows this account could have been a zero interest account and hence all the monies I have paid have more than paid the account and MBNA would be owing me money!!! Scandalous!

 

I've written back in clear terms setting him straight where he has gone wrong so I will wait with bated breath to hear what he has to say. Will keep you informed.

 

Gemspan

[militantconsumer]

What did you write in the "please tell us what your complaint is about" box on the Financial Ombudsman complaint form?

 

Just wondering what specific aspect you were asking them to rule on.

 

The reason I ask is that we have an agreement which, although signed by us, is probably unenforceable, and we are trying to work out how to force the issue without being harrassed by debt collectors, sued, etc.

 

By what you've said about your case(s), it hardly seems worth bothering with the Financial Ombudsman Service in these cases.

 

My thread is here:-

http://www.consumeractiongroup.co.uk/forum/egg/174507-militant-consumers-friend-egg.html

(the reason I think it's unenforceable is that a copy of our agreement is used in the Consumer Action Group Guide to Credit Agreements as an example of an unenforceable agreement!):-

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html