Unenforceable Credit Agreements?

[drewsters]

Hi all,

II have recently submitted CCA requests for credit agreements from 5 credit card providers, and received the first response from HFC for my Marbles card.

They have sent me what appears to be my application, which is headed:

Your prioroty application for the marbles card
Credit Agreement regulated by the Consumer Credit Act 1974

It has sections with my personal details, somewhere to include details of an additional cardholder and a long section of terms relating to the use of my personal information. It is signed by me and HFC, but there is no mention anywhere of interest rate, amount of credit etc.

Accompanying this document are a set of Ts & Cs for the credit card, but again there is no mention anywhere of interest rates, amount of credit etc.

I have 2 questions as follows:

1. Is it likely that they have just sent the wrong document, or is it more likely that the proper CCA does not exist?

2. If a proper CCA does not exist, can I challenge them myself to have the balance cleared, or would I need to do so through a lawyer?

Also, given that it is about a month sionce I sent the initial letters, and I have only had responses from 2 companies, what should be my next step with the others?

All help gratefully received by this novice!

Many thanks
drewsters

	Are you letting your bank keep your money Are you giving away thousands of pounds?? Many people aren't claiming all of the money they are entitled to when they make their bank charges claims. You have been forced to pay unfair bank charges. Have you forgotten that your bank has charged you inteest on those charges? If you are overdrawn and the bank owes you charges - then your overdraft is made up of charges - money which you bank owes you. Yet you are paying interest to the bank - on your own money!!! Follow this link to see the discussions on this. You might even double th size of your claim.

[dpick]

Originally Posted by drewsters

Hi all,

II have recently submitted CCA requests for credit agreements from 5 credit card providers, and received the first response from HFC for my Marbles card.

They have sent me what appears to be my application, which is headed:

Your prioroty application for the marbles card
Credit Agreement regulated by the Consumer Credit Act 1974

It has sections with my personal details, somewhere to include details of an additional cardholder and a long section of terms relating to the use of my personal information. It is signed by me and HFC, but there is no mention anywhere of interest rate, amount of credit etc.

Interest rate and amount of credit (or statement of how they will agree amount of credit) are both prescribed terms and for agreements made before CCA 2006 came into force that agreement is irredeemably unenforceable.

Accompanying this document are a set of Ts & Cs for the credit card, but again there is no mention anywhere of interest rates, amount of credit etc.

I have 2 questions as follows:

1. Is it likely that they have just sent the wrong document, or is it more likely that the proper CCA does not exist?

This is normal practice for most old agreements at that time they had not covered the CCA 1974 very well.

2. If a proper CCA does not exist, can I challenge them myself to have the balance cleared, or would I need to do so through a lawyer?

For the most part peps do it DIY with help from other peps

Also, given that it is about a month sionce I sent the initial letters, and I have only had responses from 2 companies, what should be my next step with the others?

All help gratefully received by this novice!

Many thanks
drewsters

My own opinion is that peps should still wait the 12+2 working days plus the 30 days before action. At that point I would send the following letter amended as required.

Re: my request under the Consumer Credit Act 1974

Thank you for your letter dated 16th June 2008.

It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1).

You have provided me a copy of an application form and I feel it is my duty to draw your attention to some serious flaws in your comments.

Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement (Not an application), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

Now then, these regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

For your information in case you are unsure. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
(a)Number of repayments;
(b)Amount of repayments;
(c)Frequency and timing of repayments;
(d)Dates of repayments;
(e)The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

Now nowhere on the application form that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect

Since the document you have supplied is a clear mailer application form, I cannot believe for one moment that these very important terms would be contained on the opposite side of the form, unless they are there for the postman to read while he delivers the mail. Therefore they must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

Therefore, you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regs under s60 CCA1974

I am of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Now since this document does not contain all the prescribed terms s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading .

I respectfully request you review this matter in light of my comments above and I request that you supply me the required information or alternatively confirm the account is closed and the debt written off with a zero balance.

I respectfully request a reply within 14 days of the date of this letter.

Yours Sincerely
_______________

print your name do not sign.

all the best dpick

	Are you letting your bank keep your money Are you giving away thousands of pounds?? Many people aren't claiming all of the money they are entitled to when they make their bank charges claims. You have been forced to pay unfair bank charges. Have you forgotten that your bank has charged you inteest on those charges? If you are overdrawn and the bank owes you charges - then your overdraft is made up of charges - money which you bank owes you. Yet you are paying interest to the bank - on your own money!!! Follow this link to see the discussions on this. You might even double th size of your claim.

[drewsters]

dpick,

Thanks very much for the help - I will send a letter off to Marbles and see what I get back.

Regarding the ones who have not replied, I will wait until the 12+2 and 30 days has passed, but what should I then say to them? Is there a standard letter available anywhere on here that I can use regarding their breach of CCA 1974 in not providing the documentation I have requested?

Thanks very much,

drewsters

[dpick]

The following is a copy of one that I used for a creditor that sent me a blank agreement when we knew that no agreement had ever been signed.
Just amend to your situation.

IE my no agreement bog off letter.

DEFAULT UNDER THE CONSUMER CREDIT ACT 1974
FAILURE TO PRODUCE AGREEMENT

Dear Sir/Madam

ACCOUNT NUMBER: ***********************

I wrote to you by Special Delivery/Recorded Delivery ( Ref ***********) on ********, 2007 asking for a copy of the above agreement together with the relevant information under Section 77-79 of the Consumer Credit Act 1974, enclosing the statutory payment of £1.00. This letter was delivered and signed for on ***** , 2007.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enters into a default situation. This occurred on *******, 2007. This time limit will has expired.

I have still not received a true copy of the agreement as required by S78 Consumer Credit Act 1974, just a blank copy of an agreement on which your company has hand printed my wife’s name and an incorrect address. As such I can only assume that no contract was ever signed by me wife. As you are no doubt aware

A credit agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act 1974 and is therefore a complete defence to any court claim that is issued.
Please take note that any legal action you may contemplate will be vigorously defended and contested.
Furthermore your actions arguably do not comply with the Office of Fair Trading (OFT) Debt Collection Guidelines of July 2003, in that you have ‘communicated in an inaccurate or misleading manner (section 2.1) by ‘presenting information in that it creates a false or misleading impression’ and ‘failing to provide information on the status of debts’.

Should you nevertheless choose to initiate legal proceedings against me, I will expect to receive, with any Letter before Action, a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA 1974 was signed by my wife in respect of this alleged debt.


What I require

I require you with immediate effect to ensure that all data held by you regarding the alleged agreement/debt is removed from any and all Credit Reference Agency database.

Ensure that all data held by you regarding my wife is fully destroyed.

Ensure that no telephone calls are made to my wife.

Ensure that all correspondence is made in writing.

I require written confirmation of the above together with a quarterly statement that no data has been processed by you regarding my wife.

Failure to comply
Failure to comply with my request under the Data Protection Act 1998 will result in the matter being referred to the Information Commissioner.
Failure to comply with the requirements of the Consumer Credit Act 1974 will cause me to refer the matter to the Office of Fair Trading, and Trading Standards.
Failure to comply with the requirements Office of Fair Trading guidelines will lead to a report being submitted.
Continued telephone contact will generate a complaint for harassment to the police.
If you fail to comply with any or all of the above I reserve the right to take action against you without further contact.
I expect to hear from you within 12 working days from the date of this letter.

Failure to do so will be taken that you have complied with my request and I will consider the matter closed.



Yours faithfully,

all the best dpick

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[platinumone]

Hello everyone I am a new member and have credit loans with the following

MBNA
HALIFAX CREDIT CARDS
BLACKHORSE FINANCE
HALIFAX UNSECURED LOAN

All of these agreements were taken out before 6th April 2007.
What do I need to do to see whether these are unenforceable and how do I challenge the banks. Help!

I have had a good read of everyone elses views and would appreciate your help particularly with reference to any standard responses that you write when dealing with the banks.

Also am i in a position to reclaim the interest that has been paid since the agreement has started? And can I ask the financial institution to freeze the interest with my first letter?

Heres hoping I can save money.

Platinumone

	Are you letting your bank keep your money Are you giving away thousands of pounds?? Many people aren't claiming all of the money they are entitled to when they make their bank charges claims. You have been forced to pay unfair bank charges. Have you forgotten that your bank has charged you inteest on those charges? If you are overdrawn and the bank owes you charges - then your overdraft is made up of charges - money which you bank owes you. Yet you are paying interest to the bank - on your own money!!! Follow this link to see the discussions on this. You might even double th size of your claim.

[Moose on the loose]

Hi There

Im a bit new to this but i have six cards and i suspect that some of them are not enforceable because i was often caught by a girl at a motorway service station or something and i dont remember a formal credit agreement being sent.

there is a small ad inthe sunday times [edit] and ive spoken to her and she reckons on a 98% success rate but wants £500 up front.

first it seems that 98% is too good to be true and secondly, £500 seems a lot - i would swallow no win no fee?

has anyone got any advice on what the success rate is likely to be in getting this stuff written off please>

Thanks

[noomill060]

Hi moose- we can all fight unenforceable agreements, you dont need to pay someone to do it.

Your post could be classed as advertising, this isnt allowed on CAG.

CAG is all about self help.

[steven4064]

Hi moose

I agree 110% with noomill. Why part with £500 to do something you can do yourself (with the help of others on CAG, of course)

BTW, I have removed the name of the 'helpful' ST add in your post.

[Moose on the loose]

OK - Sorry

Im def not advertising!

Ive sent off six x Subject Access Request's under the CCA, but i think i may have goofed because i signed the cheque myself and a number of threads have said you shouldnt do this?

does anyone know the implications?

Thanks

	Subject Access Request A Subject Access Request is a demand which you can make to any organisation to disclose any personal information which they hold on you. The right to disclosure of data is provided by the Data Protection Act. There is no time limit. The organisation is obliged to reveal everything they have about you - which you ask for - as far back as you ask for. There are very few exceptions. It does not matter whether the data is held on microfiche, in an archive, on tape, in a cardex system, in sound recordings or in screen notes. Some companies are saying that they do not have to disclose where it would be difficult to do so - "disproportionate effort". This is untrue. Disproportionate effort refers to something else under the Act. If you are seeking bank charges information then you should ask for "all data held on you" and you should make it clear that you want everything as far back as it goes. Do not be put off by excuses. Do not accept being fobbed off. It is not in your bank's interest to make full disclosure to you. This means that it is in your interests to get it. If you have not started gathering your bank charges information yet, then you should start now. There will soon be a big rush once the OFT test case has been settled. Get all of your bank account informtion as far back as possible. At least as far back as 1995. If your bank says that they don't keep data as far back as this, don't accept it. Be persistent. They've got what you need in some form or other.

[steven4064]

You seem to have coupld of things a little confused -

Subject Access Request is sent under s7 of the Data Protection Act 1998 for all information they hold of which you are th subject

A request under s77 or s78 of the Consumer Credit Act 1974 is for a copy of the credit agreement governing your account.

We advise people not to send anything with an actual signature on when making a s77/s78 request (just) in case the organisation concerned are unscrupulous enough to fabricate an agreement using that signature. To do so, of course, would be a criminal act under the various Fraud Acts.

	Subject Access Request A Subject Access Request is a demand which you can make to any organisation to disclose any personal information which they hold on you. The right to disclosure of data is provided by the Data Protection Act. There is no time limit. The organisation is obliged to reveal everything they have about you - which you ask for - as far back as you ask for. There are very few exceptions. It does not matter whether the data is held on microfiche, in an archive, on tape, in a cardex system, in sound recordings or in screen notes. Some companies are saying that they do not have to disclose where it would be difficult to do so - "disproportionate effort". This is untrue. Disproportionate effort refers to something else under the Act. If you are seeking bank charges information then you should ask for "all data held on you" and you should make it clear that you want everything as far back as it goes. Do not be put off by excuses. Do not accept being fobbed off. It is not in your bank's interest to make full disclosure to you. This means that it is in your interests to get it. If you have not started gathering your bank charges information yet, then you should start now. There will soon be a big rush once the OFT test case has been settled. Get all of your bank account informtion as far back as possible. At least as far back as 1995. If your bank says that they don't keep data as far back as this, don't accept it. Be persistent. They've got what you need in some form or other.

[Moose on the loose]

ok gotcha, well i doubt that a job s worth would get the scanner out. My signature now is very different to the one i had 15+years ago when i applied for a lot of these cards. If i suspect foulplay then ill ask for sight of the original document...

This is the wording i put in the request

"Please supply me with a true copy of the original agreement referred to above.

This is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974 - your obligation also extends to providing a statement of account. I enclose a £1 cheque in payment of the statutory fee.

Under the consumer credit act, you have 12 days to provide this information. If it is not provided within 28 days then you are committing a criminal offence.

I look forward to hearing from you."

[steven4064]

THat's OK but it is a s77/s78 request under the CCA 1974 not a Subject Access Request. Section 77 refers to fixed sum loans, s78 to variable amount loans (credit cards, in particular).

[pedantic remark]not providing the information within 1 calendar month after the expriy of the 12 days is a summary offence[/pedantic remark]

	Subject Access Request A Subject Access Request is a demand which you can make to any organisation to disclose any personal information which they hold on you. The right to disclosure of data is provided by the Data Protection Act. There is no time limit. The organisation is obliged to reveal everything they have about you - which you ask for - as far back as you ask for. There are very few exceptions. It does not matter whether the data is held on microfiche, in an archive, on tape, in a cardex system, in sound recordings or in screen notes. Some companies are saying that they do not have to disclose where it would be difficult to do so - "disproportionate effort". This is untrue. Disproportionate effort refers to something else under the Act. If you are seeking bank charges information then you should ask for "all data held on you" and you should make it clear that you want everything as far back as it goes. Do not be put off by excuses. Do not accept being fobbed off. It is not in your bank's interest to make full disclosure to you. This means that it is in your interests to get it. If you have not started gathering your bank charges information yet, then you should start now. There will soon be a big rush once the OFT test case has been settled. Get all of your bank account informtion as far back as possible. At least as far back as 1995. If your bank says that they don't keep data as far back as this, don't accept it. Be persistent. They've got what you need in some form or other.

[Moose on the loose]

I appreciate all help including the 'pedantic remarks' !!

[belovedm8]

Hi all, great forum which I have followed with great interest.

I am about to do 5No section (7 1 requests and I have a fundamental question:

All of the credit cards were taken our pre 06, so does section 15 of the 2006 CCA apply (section 15 2006 act repeals section 127 (3) to (5) of the 1974)

i.e. What will apply if the creditor has failed to execute the agreement? Is it at discretion of the court (2006 act) or creditor cannot enforce the debt? (1974 act)

Some great letter templates which are amusing however I would note creditors do not committ an offence if the 12 + 30 days to provide the executed agreement lapses and to which the Consumer Protection From Unfair Trading Regs 2008 refer. Or, similar to my question above, are any ammendments to the 1974 retrospective? i.e. cover agreements made prior to the regs/Act receiving Royal Accent??

[steven4064]

Hi belovedm8

Welcome to CAG. THe provisions of the 2006 ACt are not retrospective

[Foxknowe]

Hello,

I stumbled across this thread when doing some research on Cartel Review (I did not want to part with £495 when I can do it myself). I posted on a different thread earlier (I did register tonight), and coulddo with some help on the "procedure" to follow, and the template letters to use.

I checked out the templates earlier and the site is huge!!!

Apologies if I seem a bit of a dummy.

Between my wife and I we have 10 cards, and struggling a bit financially so any help would be greatly, greatly appreciated.

Thanks in advance!

[XXXMKP]

Hello guys, I'm new to this site, but find the contents of this forum very interesting. I am following the comments made here and will advise outcome of my credit accounts. Fingers Crossed!

In this case, does Drewsters have a responce from last letter?

[steven4064]

Hi XXXMKP

Welcome to CAG. If you have an ongoing fight on your hands, start your own thread and plenty of people will be around to help you.

[Viscount Stair]

I have started to send off CCAs but I have been omitting any reference to the criminal offence aspect as my understanding was that the offence provisions in ss77-79 had been repealed by the new Consumer Protection Regs.

However, does anyone else think that there might be mileage (at least until the point is ever tested one way or the other) in an argument that failing to comply with ss77-79 is a lack of professional diligence resulting in a material distortion contrary to reg 3 of the new Regs and an offence via that route?

[blue_sky]

Hello All, new to this site. Please could someone advise me how I can get my Credit Agreement for my RBS Loan checked to see if it is Unforceable, many companies are charging £295 for an audit, it would be nice to think I could get it checked much cheaper than this or even free.
Does anyone have any suggestions on how they went about it ?

Also, can anyone recommend any companies who are very successful at having the loan 'written off' ?