Thread: Y.B. CCA is it good??

can someone please take a look at this and let me know if it is enforceable. One is mine the other is the OHs. thank you.

The second one is illegible, and it has a stamp across the prescribed terms - on that basis it could be unenforceable.....

The first one is also a bad copy, but I'm not entirely sure about its enforceability to be honest as I don't know if the T&C's were part of the original agreement.

You won't get better copies.....you can send them the following if you want (you may need to jiggle it about a bit) as it mentions the legibility of documents:

Dear Sirs,

Account no xxxxxxxxxxxxxx

xx/xx/2009

Re: my request under the Consumer Credit Act 1974


Thank you for your letter-dated xx/xx/2009 the contents of which are noted.

I note that you have included a copy of the document, which you aver to be the copy of the credit agreement between us

Now I wish to draw your attention to a series of concerns that I have with that document and why I feel that you have not discharged your duties under Section 78(1) of the Consumer Credit Act 1974

The document received is headed “xxxxxxxxxxxxxxxxxxxxwith in this first there are no prescribed terms as required by schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983 SI 1983/1553.

To avoid any argument, the prescribed terms for this style of agreement (running account credit) are as follows

1. A term stating the credit limit or the manner in which it will be determined or that there is no credit limit,

2. A term stating the rate of any interest on the credit to be provided under the agreement

3. 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


Now im sure you are aware as per Wilson & FCT [2003] All ER (D) 187 among others that if the prescribed terms are not in the agreement then the agreement is rendered unenforceable


To be honest I cannot tell as its not legible, infact even when blown up on the pc it is not legible and as a consequence I believe that the document fails to comply with Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

For your information, I reproduce regulation 2(1) for your reference


2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the [background medium upon which the information is displayed].

Clearly as the document you have supplied is not easily legible you cannot say that you have discharged your obligations under section 78(1) as the document does not comply with the copy document regs referred to above
Now to quote your own words from paragraph 3 of your letter “this means in effect as long as the terms are clearly shown, the CCA requirements are satisfied” well im sorry but they are not as the second part of this document that you supplied in reply to my CCA request is not clearly legible

Now to resolve this matter you can either supply me a copy of my agreement, which is in a legible form where all the terms are clearly stated and the prescribed terms are embodied within the agreement

Or alternatively, we can lay the agreement which you have produced in reply to my statutory request pursuant to section 78(1) of the Consumer Credit Act 1974 before the county court and I will request pursuant to section 142(1) of the CCA that the court make an order on the enforceability of that document.

However I am sure that the bank would not be keen on this happening as should the court rule that the agreement is not enforceable and you cannot provide a better copy than what you already have then the court would have no other option but to rule the agreement unenforceable

I think I have set out my position clearly and have even reproduced excerpts of the legislation on which I base my case, therefore I respectfully request that you reply to this letter within 14 days setting out if you can supply a more legible copy of the agreement or what action you propose to resolve this dispute if you cannot although the only real obvious option if you cannot provide a better copy would be for the bank to zero the balance on this debt as it cannot be enforced without a truly legible signed credit agreement containing the required prescribed terms


I await your reply

Hi Carpinjoy,

Agree with Clemma on number 1, illegible and t&c all over the place, think they'll have a tough time with this one. Unenforceable.

Second one appears to be a single page but cut and then microfiched seperately, it does have the prescribed terms so I would say enforceable if they can prove it was all from one sheet.. thing that stands out to me is the squiggle from the signature on top right, this goes over onto top left of second page microfiche. I would say enforceable.

BUT then again these are both Microfiche copies and have come from some offsite archive firm so if a judge was so minded and stuck to the CPR rules on claims brought on agreements requiring the originals they could be on a sticky wicket

S.

Originally Posted by carpinjoy

That was my thought on the second one, as my OH new it was Microfiche doc as she used them in her line of work many moons ago, I was under the train of thought that an original had to be produced in court not a copy of any decription would be acceptable. Am I wrong on this issue.

Nope, your correct

Originally Posted by clemma

Nope, your correct

Err nope sorry I disagree. They can bring in microfiche's fag packets, whatever they want its up to the judges discretion. In small claims the CPR rules of evidence do not apply.

This thread explains more and how to counter microfiche and other "copies"

http://www.consumeractiongroup.co.uk...-evidence.html

S.

I was going to elaborate, but didn't have time due to work and had to leave CAG quickly

I guess you just have to hope you have a spot-on Judge who demands the original.

Originally Posted by clemma

I was going to elaborate, but didn't have time due to work and had to leave CAG quickly

I guess you just have to hope you have a spot-on Judge who demands the original.

Yep agree 100% there, that or have someone to represent you at the hearing.

S.

Originally Posted by carpinjoy

What is the point of having it in front of a judge if he does not follow there own rules, and decides to do what HE wants just to get it out of his court, or even worse likes banks, if the judgement call is open to his or hers interprtaion of the law.

Welcome to what on this site is referred to as the "Judge Lottery"



S.

Hi Carpinjoy...

First page is the application, looks a bad copy, can you make out anything on there that states see terms overleaf?

The second and third page look to be front and back of a t&c leaflet, they appear to be from around the same timescale, notice the /97 ref on the bottom second page.

Reading the top of the page of the application it states that this application should be read in conjunction with the terms and conditions leaflet also supplied.... so no prescibed terms on the actual agreement that you signed then. The prescribed terms cannot be referenced they actually have to be in the signature doc... unenforceable in my opinion.

S.