Thread: Urgent Help Required.application Form Is Enough For Bank 2 Win In Court?

Hi,

Do you have a thread for this? if not it mat be wise to scan (deleting personal info) and post up the docs for people to have a look at.

Hi out of cash

Can you post a link to where the form is posted on the site

application form

sorry all this pic should be better is in win zip file

Hi just tried opening your CCA from your Nationwide thread and it is corrupt.

I managed to open it - application form .

It says it's an application form

It does not say it is a "credit agreement regulated by the Consumer Credit Act 1974" as required by Schedule 1 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

It does not have the terms prescribed under schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). It does not even have the required heading "Key Information"

Therefore it is not in the prescribed form and it is not a properly executed agreement as defined in s61 of the CCA 1974:

61.--(1) A regulated agreement is not properly executed unless--
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

(my emphases) Therefore, as it is not properly executed, according to s65 of the CCA 1974, it can only be enforced by a court:

65.--(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

Further, s127 limits the courts ability to enforce an agreement that is not properly executed:

127 (3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This says that the court can make an order under s65 to enforce an agreement that is not properly executed (as defined ins 61) but only if the agreement contains all the prescribed terms and is signed by you. The agreement you have is signed by you but does not have the prescribed terms.

Therefore the court may not enforce it.

Additional important points.

1) the prescribed terms must be within the agreement and not in a seperate document.

See the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

[11] Schedule 1 to the 1983 Regulations sets out the information to be contained in documents embodying regulated consumer credit agreements. Some of this information mirrors the terms prescribed by Sch 6, but some does not

Contrasting the provisions of the two schedules the Judge said:

33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

2) where an agreement does not have the prescribed terms as stated in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3).

See the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

Refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):

28......... I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more:

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

49. .............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in

Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

Finally, should it come up, s127(3) of the CCA 1974 was repeale by the Consumer Credit Act 2006. However, it is not retrospective so s127(3) still applies to your 'agreement'

I hope this helps.

Hi nicklea

The application form has the right to cancel in the prescibed format provided they sent the details by post within 7 days (s64(1)(b)) - IMO they can say have complied with s64 unless OOC can prove (s)he was not sent such details within 7 days.

terms and conditions prescibed terms judge is going to rule upon at next hearing if i cant come up with a better defence

Hi OOC

It obviously has two holes punched in it and they were punched before it was photocopied - see the angle. Therefore the T&Cs are definitely not the same document because the application form has no such holes.

(the documents aren't even the same size)

Originally Posted by out of cash

barrister convinced the judge that the prescibed terms in the 2nd doc were originally in the 1st sheet

But they manifestly are not