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Original Agreement or not?


gyzmo
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Have had a response from my CCA - a photcopy of a document entitled "Your upgrade credit card application and agreement" which is duly signed by flatmate.

 

3 years ago he was called by Lloyds asking if he wanted to set up a new card and transfer the balance from the old card and cancel that card - which he did do.

 

does this count as a new agreement or a variation to the original agreement? And where do I go from here? It is dated before the new agreement regs so they dont apply.

 

Sorry to duplicate a post but not getting any answers from othe one!

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Hi Gyzmo,

 

Any chance that you can post a copy of the agreement,with all the personal info removed we can have a look and pick holes in it for you

 

a modifying agreement should be entitled as such but until we can have a look its pretty difficult to say

 

regards

paul

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Right - copies not coming up to well - the document sent is pretty poor to begin with so no chance of even being able to see anything on a scanned copy.

 

Instead, what legislation am I looking at to determine whether or not it is a modifying agreement or a new one? Is it the Consumer Credit (Agreements) Regulations 1983 (as amended) or something else?

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Right whats the prob Gyz

 

Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557) is your friend here:)

 

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 .

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed

agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act

without any alteration or addition, except that--

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed

by these Regulations; and

(b) every Form shall be completed in accordance with any footnote.

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced

in addition to any such Form.

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

 

 

so if its not easily legible its not compliant with the request under 78(1) cca

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Thanks - I am aware that the copy is no entirely up to spec, however the issue is whether the copy I have is a modifying agreement o a new agreement. I have loked at the regs I have referred to in my above post (Consumer Credit (Agreements) Regulations 1983) , and have read the format for what a modifying agreement should be.

 

However, when is an agreement a modifying agreement? Is it only if it says it is or is it dependant on what the agreement does, regardless of what it says it is?

 

determining whethe or not it is legible in my view is a bit futile in my case - they have a signed copy and therefore it is executable (if it is an original agreement), so arguing on legibility will only be good for delaying things.

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173. Duty to supply copy of document referred to in agreement.

 

The Consumer Credit Act 1974 imposes a duty to supply a copy1 of a document referred to in an unexecuted agreement2 or

an executed agreement3. However, this duty does not apply to a document of any of the following kinds:

 

(1) a document obtained by the debtor4 or hirer5 from a person other than the creditor6 or owner7 and

supplied by the debtor or hirer to the creditor or owner8;

 

(2) in the case of an agreement of a specified description9 and terms of which are contained in a catalogue

which is at all reasonable times during the agreement readily available for inspection by the debtor, a copy of

the catalogue in question10;

 

(3) a document, not being a security11, which constitutes, evidences or relates to title to property of any kind

or relates to the rights or duties of the debtor or hirer in respect of such property12;

 

(4) a document kept, or to be kept, by the debtor or hirer under the terms of, or in consequence of, the

agreement13;

 

(5) an official or certified copy of any entry in a register maintained by, or on behalf of, a government

department or other body charged with a public administrative or statutory function and open to public

inspection, whether in the United Kingdom or elsewhere14;

 

(6) an enactment15;

 

(7) a document, othe r than an enactment, published by, or on behalf of, a government department or other

body charged with a public administrative or statutory function, whether in the United Kingdom or

elsewhere16;

 

(8) in the case of a modifying agreement17, a document embodying the terms of the earlier agreement other

than a document a copy of which is required to be given under certain other provisions of the Consumer Credit

Act 197418;

(9) in the case of an unexecuted or executed agreement where the prospective regulated agreement19 or

regulated agreement, as the case may be, is to be or is secured on land20, any document referred to in the

unexecuted agreement or executed agreement in a case where the debtor or hirer has earlier been supplied with

a copy of that document in an identical form by virtue of any requirement of the Consumer Credit Act 197421.

 

(10) MODIFYING AGREEMENTS

 

191. Variation and modification.

 

Regulated agreements1 may be varied unilaterally by the creditor2 or owner3, or may be varied or modified by consent4.

Where an agreement, known as the 'modifying agreement'5, varies or supplements an earlier agreement, the modifying

agreement must for the purposes of the Consumer Credit Act 1974 be treated as revoking the earlier agreement and

containing provisions reproducing the combined effect of the two agreements; and obligations outstanding in relation to the

earlier agreement must accordingly be treated as outstanding instead in relation to the modifying agreement6. If the earlier

agreement is a regulated agreement7 but, apart from this provision, the modifying agreement is not then, unless the modifying

agreement is for running-account credit, it must be treated as a regulated agreement8.

If the earlier agreement is a cancellable agreement9 and the modifying agreement is made within the cooling-off period10

applicable to the earlier agreement, then the modifying agreement must be treated11 as a cancellable agreement12.

These provisions do not apply to a non-commercial agreement13.

 

 

192. Form and content of modifying agreements.

 

The provisions of the Consumer Credit (Agreements) Regulations 19831 apply to modifying agreements2 which vary or

supplement earlier credit agreements3 or earlier hire agreements4 and which are, or are treated as5, regulated agreements6.

Documents embodying modifying agreements varying or supplementing earlier credit agreements or earlier hire agreements

must contain the information set out in the Consumer Credit (Agreements) Regulations 19837. Where certain information

about financial and related particulars8 cannot be easily ascertained by the creditor9 or owner10, estimated information based

on such assumptions as the creditor or owner may reasonably make in all the circumstances of the case, and an indication of

the assumptions made, must be included in documents embodying modifying agreements varying or supplementing earlier

credit agreements or earlier hire agreements11. Where any information about financial and related particulars12 is contained in

any document embodying an earlier agreement, nothing in these provisions requires13 the information to be contained in any

document embodying a modifying agreement varying or supplementing an earlier agreement if the information is not varied

or supplemented by the modifying agreement and the document contains a statement to this effect14.

Information about financial and related particulars15 must be shown together as a whole16 and not interspersed with other

information apart from sub-totals of total amounts and cross-references to terms of the modifying agreement17.

Documents embodying modifying agreements must identify clearly the terms and financial and related particulars of earlier

agreements varied or supplemented by modifying agreements18.

 

 

193. Agreements modifying earlier credit agreements.

All types of modifying agreement1 which vary or supplement earlier credit agreements2 must contain a heading in one of the

following forms of words, as the case may require, shown prominently on the first page of the document:

(1) 'Agreement modifying a Hire-Purchase Agreement and regulated by the Consumer Credit Act 1974'3;

(2) 'Agreement modifying a Conditional Sale Agreement and regulated by the Consumer Credit Act 1974' 4;

or

(3) 'Agreement modifying a Credit Agreement and regulated by the Consumer Credit Act 1974'5.

All types of modifying agreement must also contain the name and a postal address of the creditor6 and the name and a postal

address of the debtor7.

Certain modifying agreements8 must contain a list or other description of the goods, services or other things and, in the case

of land, a general description of the land (whether or not varied or supplemented under the modifying agreement) the

acquisition of which is to be financed by credit under the modified agreement9, and the cash price (whether or not so varied

or supplemented) in relation to each such list or other description10. These agreements must also contain the total cash price

under the modified agreement11.

Modifying agreements in relation to which any advance payment is to be made12 must contain the amount of the additional

advance payments to be made by the debtor in relation to the modifying agreement and, where the modifying agreement is a

cancellable agreement, the nature of such payments13.

Modifying agreements under which any charge included in the total charge for credit in relation to an earlier agreement for

fixed-sum credit is varied or supplemented or under which the amount of the credit to be provided under such an earlier

agreement is varied or supplemented14 must contain the total amount of the credit to be provided under the modified agreement15.

Certain modifying agreements16 must contain the total amount of the credit to be provided under the modified agreement17.

Modifying agreements under which the provisions relating to any credit limit18 under an earlier agreement for runningaccount

credit are varied19 must contain the varied credit limit under the modified agreement20.

Certain modifying agreements21 must contain the total charge for credit22 in relation to the credit to be provided under the

modified agreement23. These modifying agreements must also contain the total amount payable under the modified

agreement24.

Certain modifying agreements25 must contain the varied or supplemented rate of any interest on the credit to be provided

under the modified agreement or a statement that the rate of interest under the earlier agreement is unchanged26. These

modifying agreements must also contain the total amount of other charges included in the total charge for credit in relation to

the credit to be provided under the modified agreement27.

Modifying agreements under which (a) the amount of the credit to be provided under an earlier agreement for fixed-sum

credit is varied or supplemented28; (b) the repayment provisions of an earlier agreement for fixed-sum or for running-account

credit are varied or supplemented29; or © any charge included in the total charge for credit in relation to an earlier agreement

for fixed-sum or for running-account credit is varied or supplemented30, must contain the timing of repayments to be made

under the modified agreement31. These modifying agreements must contain the amount of each repayment to be made under

the modified agreement32.

Modifying agreements under which (i) the amount of the credit to be provided under an earlier agreement for fixed-sum

credit is varied or supplemented; (ii) the repayment provisions of such an agreement are varied or supplemented; or (iii) any

charge included in the total charge for credit in relation to such an agreement is varied or supplemented, must contain the

APR33 in relation to the modified agreement or a statement indicating that the total amount payable under the modified

agreement is not greater than the total cash price of the goods, services, land or other things, the acquisition of which is to be

financed by credit under that agreement34. Certain other modifying agreements35 must contain the APR in relation to the

modified agreement36, and certain modifying agreements37 must contain the APR in relation to the modified agreement

calculated on specified assumptions38.

Modifying agreements which are required39 to disclose an APR in relation to the modified agreement and where the APR is

based on a total charge for credit which is calculated to take account of relief available40 must contain a statement indicating

that it has been assumed in the calculation of the APR in relation to the modified agreement that relief may be available41 in

respect of premiums under certain policies of insurance without any deduction42.

Modifying agreements which are required43 to disclose an APR in relation to the modified agreement and under which the

rate or amount of any item included in the total charge for credit in relation to the modified agreement will or may be varied44

must contain a statement indicating that in calculating the APR in relation to the credit to be provided under the modified

agreement no account has been taken of any variation which may occur under that agreement of the rate or amount of any

item entering into that calculation45. These agreements must also contain a statement indicating the circumstances in which

any such variation46 may occur47.

Modifying agreements48 under which an article taken in pawn by any person under an earlier agreement is varied or

supplemented, and where no separate pawn-receipt is given, must contain a statement indicating that an article has been taken

in pawn under the modified agreement and a description of the article, unless unchanged from that in the earlier agreement,

sufficient to identify it49.

Other modifying agreements50 under which (A) any provisions for security provided by the debtor in relation to an earlier

agreement to secure the carrying out of the obligations of the debtor under the earlier agreement are varied, including a

variation to or from there being no security provided by the debtor; or (B) new or additional security is to be provided by the

debtor, must contain a description of the new, additional or varied security to be provided by the debtor in relation to the

modified agreement and of the subject matter to which it relates, sufficient to identify the new, additional or varied security,or a statement indicating that the debtor is no longer providing any security in relation to that agreement51.

Modifying agreements under which any provisions for charges on default under an earlier agreement are varied, including a

variation to or from there being no such charges, must contain an indication of any charges payable under the modified

agreement to the creditor upon failure by the debtor or a relative of his to do or refrain from doing anything which he is

required to do or refrain from doing, as the case may be, or a statement indicating that no such charges are payable under that

agreement52.

 

 

195. Improper execution.

An improperly executed regulated agreement1 is enforceable against the debtor2 or hirer3 on an order of the court4 only5. As

in the case of any regulated agreement, a regulated modifying agreement is not properly executed if the provisions relating to

the supply of copies6 are not observed7

 

 

hopefully this will provide you with some answers Gyzmo

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Cheers for that - will look through a bit later - been using Butterworths myself but think I'll take a peek at Halsbury's - never have liked it for some reason... must have got a bad score in some past law exam!

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  • 2 weeks later...

Ok have looked through and it seems I'm bugg***d! The best I can do is to delay things as there looks like some non-compliance, but I have it on good authority that a court can (and probbly will) enforce the order anyway as it is only improperly executed and not unexecuted.

 

Rats!:mad:

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