Link Financial / GE Money (Evans)

[MoonHawk]

Hi,

 

This is an account for an Evans card (run by GE Money) which has been sold to Link Financial. The responded to CCA request by sending the following document. I have highlighted the points I think are of interest in yellow, and would appreciate other peoples view on the enforceability by a court. Specifically, given that it is prospective and void (as per section 59), could it still be considered as a document with all the prescribed terms to enforce the agreement via section 127(3) of the Consumer Credit Act 1974.

 

One thing I forgot to highlight is they have sent only this page, although at the bottom it clearly states "Agreement page 1 of 3".

 

They have not sent a statement of account, but have sent "some" of the statements, of which there are a number of early ones missing.

 

 

Best Wishes

MoonHawk

[Peterbard]

Hi

They have clearly not complied with the request under section 78 as they should have sent all parts of the agreement document.

The current problem that a lot of us are facing at the moment regarding the application / agreement argument is that the courts seem to be taking the view that unless the debtor has a water tight case in regards of 127(3) unenforceablity then they are reluctant to award judgement on behalf of the debtor in regard to prejudice caused by the agreement not corresponding with secton 60 and theirby the 1983 regulations.

 

One of the sticking points is that where as an application cannot be regarded as an agreement it is true however that an agreement can be regarded as an application.

Look at what the document true it says in several parts "application for" and just because it says agreement regulated by the CCA does not make it so, however if the document has the prescribed terms and it is properly signed then the current state of play is that the courts are liable to regard it as an agreement presented for signature by the debtor under section 62 of the act.

 

Best regards

Peter

[MoonHawk]

Thanks Peter for the quick response My thinking was very much along with what you have said.

 

Following your "an agreement can be regarded as an application" my question would be that does that not make it prospective as an agreement? They will be carrying out checks (which they also have to prove they have done) and section 59 would make it void as an agreement.

 

So we would be at an odd situation where the court will be using a document with all the prescribed terms (section 127(3)) to enforce an agreement which is void (section 59(1)).

 

Best Wishes

MoonHawk

[Vulture_Bank]

look at the page 1 : what is ther to prove that this is not an application for some kind of ge money card credit card or whatever

 

ok we have Evans top left but so what ???? shouldn't we expect just a little bit more rather than just one mention of "evans"

 

meaning some of these alliances between "store x" and gr money would form a special company ..... but this on the single page presented looks like it has been done it on the cheap .

[MoonHawk]

Hi Vulture

 

I get what you are saying, but not sure where you are going with it? What is the argument with them or in court?

 

Best Wishes

MoonHawk

[Newborn]

This whole agreements v application thing has vexed me from the start. It has even soaked up a huge thread on this site so I can’t be the only one puzzled by it all.

The law is a moveable feast, so the courts seem able to interpret the same thing differently. What one judge sees as unenforceable, another would view as enforceable (nothing to do with their personal view of debt and debtors of course or their individual level of knowledge of consumer credit law).

50 years ago the court would virtually have said, ‘if the bank says you owe it you must do. So pay up or else.’

If you were to look from the outside and saw an imperfect application form with some sort of agreement and a resulting account opened, with facilities being used, you would say that a contract had been formed. The debt is owed in equity if nothing else. So on a balance of probabilities the debt is owed by the debtor to the creditor. Let it be enforced.

But here legislation has stepped in (CCA 1974) together with interpretation, case precedent (Wilson) and later with limits on fair charges etc. All to protect the consumer against unfair practice. Not to shield the debtor from a fair debt recovery action.

This I suppose is why every civil case must be argued on its own merits and why the courts may decide to interpret documents the way they do. Remember that judges do tend to want to make law by ‘filling in the gaps’ that imperfect statute leaves.

Doesn’t help us much in trying to define the perfect points at which an agreement becomes unenforceable though.

As to s.59(1) I think it could be argued that this was designed to protect a potential debtor from being forced into an agreement after they had changed their mind and decided not to continue. The wording though does not technically support this.

But is there any proof that this application/agreement actually pertains to the alleged debt? What if you had cancelled it, then changed your mind and filled in another application/agreement the next day, which had different terms more favourable to the debtor. It seems strange to me that there is no requirement to tie the agreement and account together with a unique account or reference number. Just because the creditor says they relate doesn’t make it true. Where is the proof? This may also be the function of s.59(1) to prevent the wrong agreement on the wrong terms being presented as true, by not allowing prospective, pre-contractual documents.

Just a couple of questions that I have.

I remember many credit applications coming through the door years ago where the banks signature was pre-printed on the document. Would this constitute execution on the debtors signature?

Do all the terms have to be on the same side of a sheet of paper?

Sorry to ramble Moonhawk. Probably a bit too general to help you here.

Newborn

[AndyOrch]

Moonhawk

 

At the very top of the " application " under neath the bold heading it states that you the customer agree to open an account in your name on the terms set out below and on the second and third pages of this "Agreement" Which you have stated along with PB have not recieved along with the T&C (pages 2/3 I presume) and therefore remains incomplete and have not furnished your request.( wonder why they did not include them??)

I notice there is a cancelation section is this valid to the application where did you complete the "application" I notice it states Branch was it on their premises? and if valid did you ever recieve any notice?

 

Just a few things for your consideration tough one to call though as it appears all the prescribed terms are evident

 

Regards

Andy

[MoonHawk]

Thanks Newborn and Andy

 

But is there any proof that this application/agreement actually pertains to the alleged debt? What if you had cancelled it, then changed your mind and filled in another application/agreement the next day, which had different terms more favourable to the debtor. It seems strange to me that there is no requirement to tie the agreement and account together with a unique account or reference number. Just because the creditor says they relate doesn’t make it true.

At the top the account number was put in by hand, although the rest is printed.

 

I remember many credit applications coming through the door years ago where the banks signature was pre-printed on the document. Would this constitute execution on the debtors signature?

On it's own I don't think so. But if processed and stamped once they receive it then the stamp would be accepted for execution as far as I am aware. (long discussion has gone on about this).

 

Do all the terms have to be on the same side of a sheet of paper?

I thing the prescribed terms have to be, although they can be on the reverse.

 

At the very top of the " application " under neath the bold heading it states that you the customer agree to open an account in your name on the terms set out below and on the second and third pages of this "Agreement" Which you have stated along with PB have not recieved along with the T&C (pages 2/3 I presume) and therefore remains incomplete and have not furnished your request.( wonder why they did not include them??)

Got that one, thanks The situation probably makes it a bit more difficult as Link have bought the debt from GE and have to go back to them requesting the information. I CCA'd Link not GE.

 

I notice there is a cancelation section is this valid to the application where did you complete the "application" I notice it states Branch was it on their premises? and if valid did you ever recieve any notice?

Hard one to answer. Not my account and the account holder does not remember, although they are sure it was not in a shop. In my view it could not have been as it is printed and no Evans shop that I know has a large printer for this sort of document. And again no idea about the notice... they can not remember (even if they knew what it was suppose to look like).

 

Best Wishes

MoonHawk

[MoonHawk]

More for consideration. The agreement has no signature from GE ... no agreement date ... no stamp or anything to show execution on their behalf (save the hand written account number).

 

I have now a copy sent without the signature, so they can not sign and pre-date it. If they sign and send an executed copy now, we will have a cancellation period where the agreement can be cancelled.

 

Best Wishes

MoonHawk

[Peterbard]

Hi

 

Sorry i didnt respond earlier for some reason my computer wouldn't log on to the site?

 

Any way

 

As we know it is prefectly acceptable for an unexecuted agreement to be presented for signing under section 62 of the act and then to be sent off to the creditor for execution either on his signature or uppon the reciept of the conformation of this in the copy 2 as required by the regs.

Whilst the unexecuted agreement is in this state it is a prospective agreement(see definitions189).

If the document presented for signature would meet the courts criterea as being an agreement then section 59 could only be used within the period before the agreement was executed by the creditor (ie as withdrwal from a prospective agreement ) as it would confirm that no binding agreement was made by the debtor prior to execution the debtor would be able to withdraw from all obligations to the contract via section 57.

 

THe intereating part of this is when the document signed by the debtor is clearly not an agreement in that it contains none of the prescribed terms.

What should really happen upon return of this document to the creiidtor is that he should then send an agreement for the debtor to sign.

Using the application as the regulated agreement is a breach as it porprts to bind the debtor to the prospective regulated agreement.

 

So we are back to deciding whethter the document is an agreement and IMO i think the couet would say it is.

 

If the creditor has not signed it i supplse you could say it was unxecuted and therfore you wish to withdraw under section 59/57 but i really would not hold out much hope for this unless you are really willing to argue your corner.

 

Best regards

Peterr

[Vulture_Bank]

Hi Vulture

 

I get what you are saying, but not sure where you are going with it? What is the argument with them or in court?

 

Best Wishes

MoonHawk

 

sorry for the delay the only reference to evans is in the top left corner - lets call it an agreement ( for now) -- this agreement is with ge ---- now ge do not have any shops ---- so it can't be a storecard agreement --

 

there is nothing ( pages 2 and three are awol) to relate this agreement to evans

 

may it be suggested that a smart lawyer could prove this with case history --- so we have to find some !!

 

my it be suggested this is to all intents and purposes an agreement for a credit card ---- is there anthing to rlate in the available documentation to suggest otherwise ?.

 

 

it is often argued that statements are proof of a contract (easily refuted) in this case however the statements will show the name evans so you want an agreement showing details of the formal relationship between evans and ge ??

 

out of interest try comparing it with an agreement for an actual ge card.

[Vulture_Bank]

we all know the following seasonal old chesnut

 

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 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,—

 

i would write for the missing pages -

 

S.A.R - (Subject Access Request) them

so they can worry about the possibility of them being liable for charges refund (as the liability will also be assigned)

 

point out that real documents are needed in any court case -

 

point out to them cpr rules 16 and cpr 18 [ send them printouts of these]

 

that you will instigate against them shpould they commence any court case

 

and they will soon pass the alleged debt back

 

and of course ask them what type of assignment they think they have had assigned to them making sure the word think is present

 

thinking about it have you had any notice of assignment ?

[MoonHawk]

Thanks for the replies guys.

 

Peter, going to section 63...

Point 1 does not apply as it was not executed when signed by the debtor because it is missing the creditor signature (going by definition in section 189 where it is signed by or on behalf of the parties ... in plural meaning debtor and creditor)

Point 2 could have never happened as the agreement is not executed yet

Point 3 and 4 .. see 2

Point 5 makes the agreement not properly executed

 

I could not find a definition for "prospective agreement" I am assuming you are referring to the fact that it does not meet the definition of "executed agreement".

 

Whether or not this is seen as an agreement it is never the less not yet executed properly.(I tend to be less gun-ho and agree with you that it is likely that the court will see it as an agreement).

 

What is there stopping me withdrawing from the agreement now as it is not yet executed? I would say there has been no agreement. I do not deny there has been credit used, but not under this or any other agreement, so i only owe the money used and not any charges or interest applied.

 

Vulture, I follow what you are saying in relation to "is it with GE or Evans" but I do not think that has much milage and is very hard to argue in my opinion.

 

The missing pages I will definitely ask for as well as the missing statements. They have not mentioned court yet, so I am keeping CPR ready for when they do.

 

I do not agree with your statement that "liability will also be assigned" as that depends on the nature of the assignment and as to if it is "absolute" or "equitable". That again only comes into play if either I am claiming charges or they want to go to court to enforce the agreement (if it is equitable on their own they can not).

 

What I am trying to do is to get clear on the holes in the document they have sent, so that I have a case to argue to have the charges, and possibly the interest removed from the balance. The prescribed terms are there as far as I am concerned, the rest is missing for sure, but the main points that stick out for me is that it is "prospective" and not yet properly executed.

 

Best Wishes

MoonHawk

[Vulture_Bank]

have been thinking about the 3 page document ( pages 2 & 3 ) absent

logically this page 1 must have a plain back and pages 2 and 3 are on the same piece of paper.

 

this way effrctively the whole agreement consists of a part 1 which is just page 1 ...... to save money just print evans top left and the pages 2 and 3 refer to evans in particular ( however i have a very definite feeling that the pages 2 and 3 will not refer to evans --- because they never envisaged their authority to be questioned)

 

do you know how many cards ge were behind in 2005 rather a lot and on the balance of probabilies i suggest their pages 2 aand 3 would never by personal meaning refer to evans

 

GECF

Asda

28.8

Combined programme* with two APRs (24.8% and 28.8%), depending on credit score. From October 2005 three store card APRs are offered (19.7%, [] and 28.8%).† depending on credit score, and the typical APR for the combined programme is 19.7%.

 

GECF

B&Q (‘You Can Do It' Card)

26.8

 

GECF

Bentalls

27.2

 

GECF

Bhs(Gold card)

29.0

26.0

 

GECF

Boundary Mills

29.9

27.9

 

GECF

Burton

29.9

28.0

 

GECF

Country Casuals

30.7

28.7

APRs shown are for ‘Option’ card. APR for ‘Budget’ card is 28.3 per cent. From October 2005, store card no longer issued or used for payment. SBCC launched by Ikano in August 2005.

 

GECF

Debenhams

29.9

28.0

 

GECF

Dorothy Perkins

29.9

28.0

 

GECF

Evans

29.9

28.0

 

GECF

Harrods

28.9

 

GECF

House of Fraser

29.3

27.5

 

GECF

Laura Ashley

29.9

28.0

 

GECF

Monsoon

29.9

28.0

Single APR of 18.9 % from 1 July 2005.

 

GECF

Mothercare

29.0

26.0

Relaunched as a combined programme on 29 September 2005. Two store card APRs are offered (19.9% and 24.9%) and the typical APR for the combined programme is 19.9%.

 

GECF

New Look

29.9

28.0

Contract transferred to Ikano from 1 Sep-tember 2005 with APR of 25.9%.

 

GECF

Outfit

29.9

28.0

 

GECF

Owen & Owen

30.7

28.7

 

GECF

Principles

29.9

28.0

Contract transferred to Ikano from 15 August 2005 with APR of 24.6%.

 

GECF

River Island

29.9

28.0

Single APR of 17.9 per cent from 1 August 2005.

 

GECF

Russell & Bromley

29.9

28.0

 

GECF

Miss Selfridge

29.9

28.0

 

GECF

Topshop/Topman

29.9

28.0

 

GECF

Wallis

29.9

28.0

that is 24 store cards

[MoonHawk]

There is an assumption on your logic there mate. It might be printed on an A3 sheet folded in which case all the terms are effectively on one sheet.

 

Also by it's nature it does not have to refer to Evans at all. The agreement is with GE Capital for a card I can use in Evans. Just like the fact that not all credit cards are accepted anywhere, this would be the same but accepted in rather a lot more limited number of shops.

 

If you read below the heading at the top, it specifically says the agreement is with GE.

 

Best Wishes

MoonHawk

[Vulture_Bank]

i was going to say -- if we could get hold of any old copy of any above agreement -- but even easier go into one of the above shops and try to get a copy of any unexcuted one -- to see if page 2 and 3 are personal

[MoonHawk]

That's the thing ... I do not think this is even a shop one. It is printed which makes me doubt it is from the shop as they would be handwritten.

 

Best Wishes

MoonHawk

[Vulture_Bank]

There is an assumption on your logic there mate. It might be printed on an A3 sheet folded in which case all the terms are effectively on one sheet.

 

Also by it's nature it does not have to refer to Evans at all. The agreement is with GE Capital for a card I can use in Evans. Just like the fact that not all credit cards are accepted anywhere, this would be the same but accepted in rather a lot more limited number of shops.

 

If you read below the heading at the top, it specifically says the agreement is with GE.

 

Best Wishes

MoonHawk

 

in that case it would not have page 1 of 3 to the bottom left and if it was to be returned by post woul have folding marks etc -- because it would have had to be folded when sent out in the post and returned the assumption of a3 is a no-goer --theonly larger than a4 ( and we have seen smaller than a4) is a foolscap size form which sadly for the issuer was not practical to scan -- in fact using the word scan gives more support to how hard it is to photocopy etc just the page 1 and not a bit of the page 2

 

anyhow time for a fullstop on this matter

 

we will agree to differ!

 

we have see

[MoonHawk]

I was not disagreeing. I was pointing out that unless we have site of the original we are making assumptions.

 

Best Wishes

MoonHawk

[spiritgirl59]

Hiya Moonhawk

 

Subbing

 

I too am in an ongoing dispute regarding an alleged Evans account.

 

The OC concerned (GE) assigned this to CL Finance who sent me a single page application form which was signed in a store by a store assistant - it looks nothing like the one in your possession so I would be willing to bet the one you have was not signed in a store.

 

As I refused to accept this as a properly executed CCA, CL Finance then passed this to H Cohen & Co who then sent me a single page blank copy of a credit agreement template, again even that looks nothing like the one in your possession. We are now at a stalemate cos I wrote back and told Cohens that what they sent is not a CCA either

 

I don't understand the legal bits of all the posts on your thread, durr am a bit dense on things like that LOL .... but I just wanted to offer you my support and say I'll be watching with interest because in my own experience this little bunch (GE/CL/Cohens) are all plonkers!

 

Love SG x

[Vulture_Bank]

Hi,

 

This is an account for an Evans card (run by GE Money) which has been sold to Link Financial. The responded to CCA request by sending the following document. I have highlighted the points I think are of interest in yellow, and would appreciate other peoples view on the enforceability by a court. Specifically, given that it is prospective and void (as per section 59), could it still be considered as a document with all the prescribed terms to enforce the agreement via section 127(3) of the Consumer Credit Act 1974.

 

One thing I forgot to highlight is they have sent only this page, although at the bottom it clearly states "Agreement page 1 of 3".

 

They have not sent a statement of account, but have sent "some" of the statements, of which there are a number of early ones missing.

 

 

Best Wishes

MoonHawk

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1097290.html

 

what do you think this one is the works of shakespeare page 6 of 10

 

yet agreement page 1 of 4 bottom left corner :lol::lol: