Thread: Unenforceable Credit Agreements?

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

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

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

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.

You seem to have coupld of things a little confused -

SAR 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.

THat's OK but it is a s77/s78 request under the CCA 1974 not a SAR. 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]

Hi belovedm8

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

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.