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Yorkshire Visa now Marlin Chasing - **Ack'd AS SB'd - CLOSED**


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Hi everyone

Sent CCA request and got back an application form with no credit limit or APR or T& C's. Sent them a letter stating not a credit agreement and stopped payments.

Received a letter today saying

"As you contend.under section 61(1)b the credit agreement may embody all the terms of the agreement. The copy agreement refers to the Yorkshire Bank Visa Conditions of Use in the declaration section immediateley above the signature box." (Its hard to read but it says I agree to be bound by the YBVC conditions of use set out overleaf in accordance with section 10)

Theres nothing on the back of application form.

They say this means the agreement signed by me conformed to CCA regulation 1983.

They have sent another copy of application form, 2007 T&C'S and 3 A4 sheets of T&c's with someone writing 1996 on top. The T&C's for 96 reads for section 10 "Changing this Areement. We may make changes etc etc." I would have thought sec10 would have been about Use of the Account not changes to interest or APR?

Plus in the Declaration box that they refer to, it also says " if my application is successful ".

Can any body advise what to do next. I still think it is wrong as there is no Credit Limit or APR on it.

Thanks

Alamand

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Hi alamand

 

I would think what you have received is not a properly executed agreement BUT I will bump your post up and let the others have a look to be 100% sure.:)

 

What got alarm bells ringing when I read your post is the fact that they have sent you another copy of an APPLICATION form, plus separate t&cs which could relate to anything or anyone at all (i.e., they are not connected with your alleged account number) and they have "written" 1996 on the top (I have a similar situation with Capital One).

 

Good luck, I'll watch your thread.

Love Spiritgirl x

Please note I am not legally qualified, I am offering advice based on my own personal experience in the hope that it may be of help to others in a similar situation.

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Thanks Spiritgirl

Thats what I thought. The "96 T&C's" are just printed on 3 A4 sheets of paper but the 07 ones are a photo copy of their current leaflet. It also states on the application form the "T&C's set out overleaf", and theres nothing on the back of the application form.

Hope someone like Rory will be able to come along and help to me.

Many Thanks Spiritgirl & good luck with Capital one

Alamand

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Now does this "agreement" have any of the needed terms ?

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

If not then are rather stuffed.

 

Might be worth sending them this:

 

Re: my request under s78 of the Consumer Credit Act 1974.

 

Thank you for your recent letter sent to me dated 21st June 2007, the contents of which are noted. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated 26th April 2007. Upon receipt of the original request the specified account legally entered into disputed status.

 

My request remains outstanding. An application form does not constitute a true copy of a credit agreement and that which you sent doesn't even contain all the prescribed terms and is not 'properly executed'. The statements sent do not correspond to the amount stated in your earliest correspondence and therefore they do not satisfy the requirement to supply me with a statement of account.

 

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until 25th May 2007 to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

 

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence. You entered into a default on 25th May 2007 and subsequently committed a criminal offence on 25th June 2007.

 

Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to offer credit in the future.

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

I look forward to your reply.

 

Yours faithfully

Be VERY careful whose advice you listen too

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  • 1 month later...

Hi everyone

Well i sent them a letter saying it was an application form and i stopped payments after 12 + 30 days.

They sent me a copy of some T&c's in August with no heading just 1996 hand written in the corner along with the same application form saying they had fullfilled my request.I sent them a letter that i was pleased that they were going to rely on this application form in court.

They have now sent me another set of T&c's with Yorkshire Bank Visa as a heading but they have now added another paragraph above condition 1 which now includes the credit limit will be deternined etc and the Apr.They also say that the T&c's were printed on the back of my original "application form"

Can anybody advise what to do next as it seems YB are making the T&c's up as they go along.

I dont want to go to court if the T&c's they have now sent will stand up in court.

Many Thanks

Alamand

 

Ps

They say I have now got seven days to make a payment.

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Hi

 

Under section 61(1) b the original agreement has to have the terms of the agreement.

 

The banks are trying to get around this by quoting regulation (7)(b) of the Consumer Credit (canelation Notices and Copies of Documents) Regulations 1983 where it says they have to provide the latest copy of the T&C. What they dont relise is they still have to supply the originals.

 

Also in my opinion the prescribed terms should be before the signature and not in the T&C (if thats where they are) as they could slip them in anywhere.

 

Can you post the T&C

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Thanks nightmare

They have sent current T&c's plus the T&c's that they say were printed on the back of the original application form. But they sent the supposed original T&c's in August(no title just 1996 hand written in the corner and no mention of them written on the back of application form) but when i queried it with them they have sent another lot of T&c's that are exactly the same but with an extra paragraph included which now contains the Apr and the statement "we will determine your credit limit".

They have now sent 2 different lots of original T&c's.They are both just printed on 3 sheets of A4 paper.

SWScan00067.jpg

SWScan00068.jpg

I have scanned 1st page from each and as you can see from the second one September, they have added another paragraph and extra in the Definitions.

All help very much needed

Thanks

Alamand

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Hi

Theres something dodgy going on here.

 

Not sure what to do next.

 

If this was me tho I would ask them why they have produced two T&C and demand proof that it was on the back of the application form.

I would also let them know the consiquences of potential fraud.

 

Also It is an application form and if the correct T&C where on the back it has to be clearly marked on the front of the form that all the info is on the reverse.

 

Anybody else got any ideas:confused:

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They are both just printed on 3 sheets of A4 paper

 

Just noticed if there are three sheets how can they fit on the back of a single A4 application.

 

Also are the application forms carbon copys?

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ALL the prescribed terms MUST appear on the same sheet as the signatures, so it doesn't matter what they have sent afterwards as evidence as this APPLICATION is still unenforceable.

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

 

Knightmare, the T&C's are complete crud anyway. Have a look at term 3.1 as it refers to another section that isn't even on these copies ;)

  • Haha 1

Be VERY careful whose advice you listen too

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ALL the prescribed terms MUST appear on the same sheet as the signatures

 

Ive been after this answer for a bit cheers CB.

I even called my free legal help and he didnt know he just gave me so cr*p about clearly marked on the front he thinks!!

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Thanks everyone

Is there a letter any where that I could send.I have read Peters thread so I knew the prescribed terms were missing and the first lot of T&c's were no good but I didn't know what to do about the second lot of t&c's. How can a large co. get away with blatantly altering documents.

Alamand

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Try this one for size.

As ever edit as needed

 

I refer to your letter dated xxxxx, the contents of which are noted.

 

I note that you have sent me a copy of the application form for this account.

 

However, on the (DATE YOU SENT CCA) I made a written request for a copy of the executed agreement under s77/78 CCA. This letter was sent by recorded delivery and signed for at your office on (IF THIS IS THE WAY YOU DONE IT).

 

My original Statutory Request was for a copy of my credit agreement conforming to Section 61 of the Consumer Credit Act 1974.

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

Please note that your company is now in default as this request was not complied with within 12 working days as prescribed by the CCA (AGAIN ONLY PUT THIS IF IT APPLIES).

 

I now require that you provide me with a copy of the correct document, or your written acknowledgement that you are unable to do so, within 14 days of receipt of this letter.

 

Please also note that until such time as you do provide me with a true copy of this document, the agreement remains unenforceable and no further payments will be made.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully,

 

Be VERY careful whose advice you listen too

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  • 1 month later...

Hi everyone

Just an update.

YB have sent a letter after their internal investigation into my complaint of not receiving the correct credit agreement(they decided to investigate after I refused to pay their dca).

They have sent another application form with another set of the second T&C's saying they have sent everything they need to according to the credit Act(This is their findings into my complaint).

They say I can now report YB to Financial Ombudsman and I have seven days to contact the Dca or proceedings will commence and that if they dont here from me in the next eight weeks they will consider the matter closed.

I have already written and told them the application form is not a credit agreement and then another letter saying that I was pleased that they confirmed that what they sent me is what they believe to be the correct agreement.

Can anybody advise on what letter to send next.

It looks like they will take me to court so I need to know what to do now.

Its getting scary now.

Can anybody help please.

Alamand

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Here you go, but I must warn you that IF they want to take you to court they will, with or without the compliant agreement.

DON'T panic though as this is a EASY defence in law and we WILL assist if needed.

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the **DATE** I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

On **DATE** a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

 

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the **DATE** I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

BLAH

Be VERY careful whose advice you listen too

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Thanks Curlyben

I will send the letter omitting the 'statement of account' cos they have finally sent that with the last letter.

Should I report them or just wait and see what happens.

What ever you do, never go away, cos its you guys that are giving me courage to take these guys on.

I didnt believe large banks would carry on like this, especially doing things like sending 2 different T&C'S and in their latest letter, the application form they have sent, they have cut the heading 'Application Form' off, trying to make it look like a credit agreement(my oppinion).

Many many thanks

Alamand

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Hi again alamand

 

Just popping in to continue to give my support to you :)

 

I'm glad Curlyben has helped you so much, he is ace (*waves* to Curlyben) :grin:

 

Don't worry we are not going away - CAG is going from strength to the strength by the looks of it, and is helping so many people to avoid being bullied and harrassed over financial troubles.

 

I think CAG should apply for a lottery grant so that they can afford to advertise on TV & radio, and reach out to help the masses!!:) Imagine how many more people could be helped, people who must be going out of their minds with worry right now :(

 

LOL alamand I have no less than SEVEN copies of t&cs and application forms from Crapital One, each of them slightly differently copied, but all the same in one important way - they are totally useless!

 

Keep fighting! You will get there in the end.

 

(((cyberhugs)))

Spiritgirl x

Please note I am not legally qualified, I am offering advice based on my own personal experience in the hope that it may be of help to others in a similar situation.

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Thanks Spiritgirl

Your support is very much appreciated as well as Curlyben's and the others.

I am just writing my letter and will keep you all informed when I hear something, as I know doubt will.

Good luck with your fight.

Once again many many thanks

Alamand

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