TBI Financial Services **WON IN COURT**

[rory32]

Yes, you should now write to them.

I would always argue that an application form falls under s59 of the CCA1974. If you wish to read this legislation the link is here http://www.crw.gov.uk/resources/cons...ditact1974.pdf

If you wish to read of a case where the judge has ruled that an application form is not a credit agreement then you may wish to look at this thread http://www.consumeractiongroup.co.uk...rt-credit.html

Just as a further point the statements they sent you are also rather irrelevant. A statement of account as required by the Consumer Credit Act is not the same as statements of account delivered through your door each month.
To clarify the point, here is what a statement of account under the CCA must comtain:

together with a statement
signed by or on behalf of the creditor showing, according to the information to which it
is practicable for him to refer,--

Consumer Credit Act 1974 (c.39)

(a) the state of the account,
(b) the amount, if any currently payable under the agreement by the debtor to the
creditor, and
(c) the amounts and due dates of any payments which, if the debtor does not
draw further on the account, will later become payable under the agreement
by the debtor to the creditor.
(2) If the creditor possesses insufficient information to enable him to ascertain the
amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that
paragraph if his statement under subsection (1) gives the basis on which, under the

regulated agreement, they would fall to be ascertained.

[asf1]

OK, one final item to clarify... re the copy of ts&cs they sent, does this TOGETHER with the application make more of a case for TBI?

[rory32]

Without a copy of the agreement t&c's are pretty irrelevant.

However, out of interest are the t&c's the original ones that would have been sent at the time the agreement was taken out or are they just a copy of their current terms and conditions?

[asf1]

They appear to be a copy of the originals applied at the time of application, no credit limit is stated just "Your Credit Limit will be determined by us from time to time and notified to you" and "interest rate is 1.53% per month... APR 19.9%" More evidence that this is merely an application not a contract

[rory32]

"Your Credit Limit will be determined by us from time to time and notified to you" and "interest rate is 1.53% per month... APR 19.9%"

These are some of the prescribed terms of the contract which should be in a credit agreement - not in a seperate document. They have once again shot themselves in the foot.

[asf1]

Just had a letter from TBI's solicitors giving me 10 days to pay or else they go to court. They claim although the document is headed "application form" it along with the t's&c's complies with CCA sec 60 & 61.

Advice on my next step most welcome

[asf1]

In looking at the form with the Ts&Cs together in more detail, it may be construed that all the prescribed terms are present, albiet on the reverse of the form and nor referred to on the front of the form. Are there any actual cases anyone is aware of that have tested "Application V Agreement"

1. Credit Limit: "Your Credit Limit will be determined by us from time to time and notified to you"
2. Charges: "interest rate is 1.53% per month... APR 19.9%"
3. Repayments: You must repay us within 21 days...5% or £5 etc"

[rory32]

In looking at the form with the Ts&Cs together in more detail, it may be construed that all the prescribed terms are present

The prescribed terms need to be contained in the agreement, not in a seperate document.

In McGinn v Grangewood Securities 2002 the Judge has this to say
It follows that in a case where there is no document signed by the debtor which contains all the prescribed terms of the agreement the court has no power to make an enforcement order

There was also a recent case here where the judge ruled that the application form did not represent a copy of the agreement. I'll have to have a look for the thread though.

[tomterm8]

Hi ASF1, I got your PM asking for clarification. Looking at the document in question, I am not even convinced that you have the entire copy of the application form since it seems "cut off".

In any case, Rory is entirely correct in his advice.

[asf1]

Sorry, my scan was incomplete. I'll scan the whole form again, with the t&c doc and other letters and post here. Tks for your time tomterm8 and no offence rory32, just wanted a second pair of eyes to check the details before my response to TBI is drafted. Tks again

[rory32]

asf1, for your own information you may wish read this document http://www.oft.gov.uk/shared_oft/rep...it/oft786a.pdf

Although it's quite long you only need to read the first 30 pages or so. It should help you understand what is meant by a credit agreement.

[asf1]

An update with proper scanned images and letters from TBI...

TBI Will not budge on the Credit Agreement front. They insist all is correct, and continue to demand I settle the account in full and are threatening "accrued interest". What's next? Do I wait and let then take me to court and defend with the "not an agreement" argument..?

Attached is a full page pdf of the "alleged" agreement [GM Application] and the associated T's & C's (A separate document, together with the application form completes their argument the agreement is enforceable) [HFC Terms]

A response from TBI's collections dept:

Our Ref:

T.B.I. FINANCIAL SERVICES LTD.

1ST FLOOR, THE ROBERT CORT BUILDING
ELGAR ROAD SOUTH
READING RG2 ODL
UNITED KINGDOM

TELEPHONE: 0118 931 3800
FACSIMILE: 0118 931 3666

Dear

RE: AGREEMENT NUMBER:
OUTSTANDING BALANCE: £1,010.23 PLUS ACCRUED INTEREST

I write with reference to the above and further to receipt of your letter dated 7th June 2007, the contents of which have been noted.

I am somewhat surprised and disappointed regarding the content of your letter as you have stated that you have not received a copy of your Credit Agreement. A further copy of your credit card Agreement is enclosed and you will note it is stated at top of page as stated in your aforementioned letter, that Credit Agreement regulated by The Consumer Credit Act 1974 it is also accompanied by the terms and conditions for this Agreement.

You will also find enclosed a copy of a Notice of Assignment sent to xxxxx, dated 13th April 2007 and your response was received on 25th April 2007, a copy of your letter is enclosed.

[I never received this NOA as it was sent to a previous address, stranglely not the address the default was registered to. My "response" was a letter I sent to them coincidently in April and in no way related to the NOA]

I have enclosed a Deed of Confirmation for your records.

Please be advised that you failed to submit payment as requested of £909.21 within the specified period, therefore this offer is now rescinded and the full balance is now payable, which may be subject to interest under the terms and conditions of this Agreement.

I would be grateful if you would submit your renewed proposals within 21 days of the date of this letter.

Mr P Norville
Collections Department
REGISTERED IN ENGLAND No. 2916402
REGISTERED GFFICE 1ST FLOOR, THE ROBERT CORT BUILDING.
ELGAR ROAD SOUTH. READING RG2 ODL

And a response from TBI's in house solicitor (Consumeractiongroup even get a mention)

DAVID D.JONES LL.B
SOLICITOR

20 June 2007

Dear

RE: ACCOUNT NUMBER:

I am the Solicitor for T.B.I. Financial Services Ltd who, as you will be aware, are the Assignees of the benefit of the GM affiliated Credit Card you previously entered into with HFC Bank plc in June 1994.

I have been passed my clients’ file of papers in this matter, including your latest letter of the 15th June 2007 regarding the same.

Upon reviewing the file in detail, I note that you have, on two recent occasions, been sent a copy of the duly completed and signed Credit Card Agreement previously entered into by yourself with HFC Bank plc. I also note that in your letter of the 7th June, you state you have taken legal advice on the document sent and claimed that the “Application Form” sent to you does not fit the criteria laid out in the Consumer Credit Act 1974.

This is entirely incorrect. Although headed “Priority Application Form”, along with the associated Terms and Conditions, the document does constitute a valid Credit Agreement which has been signed both by yourself and HFC as such. The Credit Agreement complies with the Consumer Credit Act 1974, in particular Sections 60 and 61. As such it is legally enforceable.

[The form even states "Application subject to status" on the 4th line down]

I would suggest that you take proper independent legal advice concerning the same if you are still unsure of your position, as it would appear, given the contents of the correspondence you have submitted to date, you have simply taken advice over the internet, as your letters bear a substantial resemblance to numerous others that my clients have received concerning similar points.

I do not intend responding to the specific points raised in your recent letter, as all of the same are based on your incorrect assumption that you have not been provided with a valid copy of your Credit Agreement. You have also been advised that your outstanding debt currently stands at £1,010.23 and is due and owing in full given your failure to maintain the payments required under the terms of the original Credit Agreement.

I am instructed by my clients that they require repayment of this sum in full within the next ten days, failing which your file will be prepared for legal action to be taken in order to recover this outstanding debt, together with a claim for further interest both prior and subsequent to any Judgment obtained as per Term 11(c) of your Agreement, together with all costs incurred in taking such action as per Term 2(b)(iii) of the Agreement.

I look forward to receiving your remittance within the time stated above, payable directly to T.B.I. Financial Services Ltd.
Yours sincerely

D D Jones
SOLICITOR Regulated by The Law Society

[kennyparkroad]

ok send them back a letter maybe include something like this

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself, to date you have not done this as several of the prescribed terms are missing on the main document, thus making the document unenforceable.

i think that sounds about right,

Rory?

[kennyparkroad]

its clearly missing several of the prescribed terms, doesnt matter that they are mentioned in another document, as rory says they have to be in THE agreement, not a seperate sheet.

[asf1]

Originally Posted by kennyparkroad

its clearly missing several of the prescribed terms, doesnt matter that they are mentioned in another document, as rory says they have to be in THE agreement, not a seperate sheet.

Yes agreed, as I remember the terms were in a little A5 folded up pamphlet. I've sent a modified version of curlybens letter that will hopefully put a rocket up their @rse. Tks again.

I got stopped at Warwick Services on the M40 the other day by a couple of ladies trying to sell me an MBNA card... the "agreement form" and terms are still separate (again little folded sheet) and are worded pretty much the same as years ago!!! I fail to comprehend how they can still do this without any forethought.