Thread: Lloyd Credit Card Application Form not CCA-Valid?

I finally after several months (request sent November) have received very poor copy of an CC application form which had been faxed. Attached are current T&Cs and a half page copy of the what I presume are the original T&Cs. The letter states that they have fulfilled their obligation and includes some blurb about CNCFD regulations and how they are not under obligation to provide an exact copy of the original executed agreement. What they have sent me is an application form for a credit card agreement which is unreadable, only the handwritten stuff can be deciphered. Are they write that something marked application form is sufficient?

Is a faxed application form enough?

This is the best copy I can make, as you can see what they sent me is unreadable.lloydscc.pdf

Hi Scrambul,

I too am in the same position as you, after months a chasing (and omb's useless interaction) Llloyds have sent me the same type of application and are claiming it is valid for my Credit C account they also claim it fulfills my request... I don't believe for one minutes this is a legally binding consumer credit agreement and I to would be very iterested to hear what any experts out there thinks.....

Lloyds treat people like fools - BTW they have defaulted me too on an account in default with them ..... something has got to change with this credit b*ll*x scoring system!!

Trampdog

Originally Posted by scrambledbyegg

This is the best copy I can make, as you can see what they sent me is unreadable.Attachment 9017

Is there anything on the reverse side of that page ? I don't see any prescribed terms on that page, as bad as it is. Someone with far more knowledge (and better eyesight ) would be better to advise and I'm sure someone will be along soon to verify it.
Also the date in the signature box is 30/04/98, yet the date along the edge of the document is 11/01/99. I don't know what the significance of this is or why it is there.

There is a second photocopy page with some T&Cs. It looks like a poor photocopy with the page on a slant, supplied on a separate piece of a paper so I don't know it its a copy of the originals reverse. I have had a quick play with photoshop and matching the font sizes there is no way they are front and back of the same page unless there is some parts missing from the application form part. The date jan 1999 is from a fax machine, so the poor copy of the app form is from a fax.lloyds_TC.PDF

I'm going to send off Vints letter from this thread http://www.consumeractiongroup.co.uk...ml#post2459062

and also a SAR after receiving the following BS letter.
ltsb_rep_red.pdf

A new company has started chasing this now, Robinson Way Limited. I sent LTSB a SAR, and eventually they responded. The only relevant documents were the same copies that they sent under the CCA.[ATTACH]lloyds_TC.PDF[/ATTACH]

I told this to RWL who have now replied saying "we are satisfied that the documentation provided is sufficient to demonstrate liability and we will not enter into repetitive correspondence regarding this. ..We require your payment proposals within 14 days."

I don't believe that the above supplied under CCA and now SAR (i.e. there is no signed agreement) is enforceable. I was intending to reply with teh following letter, any thoughts?

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

ACCOUNT IN SERIOUS DISPUTE

Re: my request under the Consumer Credit Act 1974

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On 18th November 2008, I requested that Lloyds TSB supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date they and their respective agents have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

78 Duty to give information to debtor under running-account credit agreement
(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, 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,—
(a) the state of the account, and
(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.
(6) If the creditor under an agreement fails to comply with subsection (1)—
(a) he is not entitled, while the default continues, to enforce the agreement;

Clearly as no agreement has been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

These include below, the relevant main points of the Law and OFT regulations while the account is in dispute and Lloyds TSB remain in default.

• LLOYDS TSB/Robinson Way Ltd may not ask for payment against this account.
• I am not obliged to offer any payment against this account.
• LLOYDS TSB/ Robinson Way Ltd cannot register any data with a third party.
• LLOYDS TSB/ Robinson Way Ltd cannot take any enforcement action, including registering Defaults.
• LLOYDS TSB/ Robinson Way Ltd cannot pass the account on to a third party for collection.
• LLOYDS TSB/ Robinson Way Ltd cannot sell the account.

What is required of a true copy.

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection From Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”


I refer you also to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.


2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.


Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I now draw your attention to section 127 (3) Consumer Credit Act 1974 which states

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 is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to 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 the agreement cannot be enforced.

To clarify S.61(1) states

(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

In addition the prescribed terms referred to in section 60 CCA1974 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—

1.Number of repayments;
2.Amount of repayments;
3.Frequency and timing of repayments;
4.Dates of repayments;
5.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

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced.

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

All entries which refer to missed payments be removed from my credit file
All collection activities cease with immediate effect until you comply with my request from 18th November 2008 or such time as a court makes an enforcement order.
In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

What I Require.

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

I am now granting to you a further 7 days to produce a copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well.

No other correspondence will be accepted

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

I trust this out lines the situation

Yours faithfully

Anyone think I should send the above?

Sent the letter you suggested today. Had a voicemail from them on my old mobile number, despite stating quite clearly that they are not to call. Seems the people never get the message.

Well I sent the letter, three more messages were left on my mobile phone from Robinson Way telling me to call them on an urgent matter. Now I received this through the post, interesting wording I think.
rob_way_ed.pdf

Well following on from the previous letter, Robinson Way have sent an identical letter to the first saying that they are happy with documentation sent and that they will not enter into endless correspondence etc etc. How many times to do I need to send the same letter before they get the message?

Robinson Way have now sent me a letter threatening home visits. The CCA and SAR have only produced the poor copy of an application form posted earlier. The account is clearly in dispute yet now they are threatening to call to my parents home! Does anyone have any ideas on how to respond?

bump

Robinson Way have now sent me a letter threatening home visits. The CCA and Subject access request have only produced the poor copy of an application form posted earlier. The account is clearly in dispute yet now they are threatening to call to my parents home! Does anyone have any ideas on how to respond?

Another letter from RW stating that they have complied with the request and that they exopect my payment proposal by return. Given that in response to a CCA request and SAR I have only received a poor unreadable photocopy of an application form should I respond stating that they are either not in possession of a signed agreement and therefore are making false claims, or that if such a document does exist then they have breached the SAR by not supplying me with a copy? I am also inclined to state that if they believe they have sufficient evidence then they should proceed to court action that I can initiate a CPR.16 request since they are unable/unwilling to comply with my request.
Anyone got any thoughts?

Hi. Sorry cant offer you any advice. I am in a similiar situation to you. I asked for CCA about 18 months ago from Lloyds, sent me an application form. Have actually admitted that they do not have an agreement and application form is all they have. I've now been passed on to debt collectors threatening to send round debt collectors. Ive asked them to put account in Despute but no joy. I now have a default on my credit report, which has lowered my cedit score considerably.

There is no way i'm going to pay this debt. As far as I'm aware they will not dare take me to court because they know case will be thrown out as theres no credit agreement. I've had the same argument with them - I've paid the debt in the past therefore the debt does exist.

I really think that the only option for both of us is to ride out the storm and eventually they'll get the message that is not going to be paid and they'll give up!! Dont relish the thought of debt collectors though.

Would be interested to see other posts regarding this matter.