Advice requested regarding court threat **WON** Case Struck out

[Rilly]

Sorry for the delay everybody, major computer issues this weekend. Now hopefully sorted. I hope the anticipation hasn't been too bad!

 

Anyway, I have at last attached the CCA.

 

As always, I'd be grateful for your responses.

 

Thanks,

 

Rilly

[pt2537]

Hi Rilly,

 

i have had a look but the image is too small

 

can you upload it into photobucket and then post it here

[Rilly]

Sorry, I thought that somehow the image could be enlarged. Hopefully this link should do it?

 

Rillyy - Photobucket - Video and Image Hosting

 

Regards, Rilly

[pt2537]

Hey rilly,

 

well guess what

 

if that is what they claim to be your binding credit agreement...........

 

 

 

id be very happy because it has no prescribed terms

 

totally unenforceable IMHO

[Rilly]

Thanks pt, sorry for delayed reply but I've been working away. This sounds like good news! What's the best thing to do from here? I believe I have 7 days from tomorrow to complete the court response form. Should I make reference to the fact that the credit agreement has no prescribed terms? (also, I know I'm going to kick myself, but was does IMHO mean?)

 

Thanks, Rilly

[pt2537]

Before turning to these articles I should outline the salient provisions of the Consumer Credit Act 1974. Subject to

exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter

provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the

amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as

properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all

the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases),

how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer

Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not

enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an

application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court

considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree

of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered

as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make

consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is

where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an

enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed

by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to

the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a

copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and

63, section 127(4) precludes the court from making an enforcement order.

 

 

if i use the judgment of Lord Nicholls of Birkenhead to explain, the prescribed terms are required to make an agreement enforceable so since the prescribed terms are not there its unenforceable

[pt2537]

Thanks pt, sorry for delayed reply but I've been working away. This sounds like good news! What's the best thing to do from here? I believe I have 7 days from tomorrow to complete the court response form. Should I make reference to the fact that the credit agreement has no prescribed terms? (also, I know I'm going to kick myself, but was does IMHO mean?) OOOOPPPS THAT WILL TEACH ME TO READ PROPERLY:D

 

Thanks, Rilly

 

sorry disregard my last post, been a long day

 

IMHO means In My Humble Opinion

 

i thought you were asking what the prescribed terms means sorry,

[Josie8]

I've just looked at agreement and sorry to be a party pooper but I think the prescribed terms are in the section "Financial Information" - credit limit, interest rate and repayments of 4.00 or 4%:-?

[pt2537]

Josie i cant see for sure to be honest,

 

may be its my pc but the wording is blurred, HOWEVER, if the prescribed terms are there

 

we have a cancelable agreement here, so they would be required to have sent cancellation rights etc

[pt2537]

When was the account opened? as there is no date on it

[Josie8]

'fraid the wording is there. But as you say it is a cancellable agreement and therefore unless they have produced the neccessary proof of having sent s etc 7 days later it could be argued as unenforceable. It's a pity about the prescribed terms as that is a more concise argument with the DJ

[tomterm8]

it doesn't appear to have the credit limit, which is a prescribed term for credit tokens.

[Josie8]

"we will determine your credit limit from time to time and give you notice of it"

 

Ist line directly underneath the heading Financial Information

[Josie8]

During the period I held my account, the monthly statements were sent to the wrong address until at least Oct 2004, despite at least two phone calls advising change of address. (I moved house on 170903) The first statement with the amended address is dated 2nd January 2005 (Nov 04 & Dec 04 statements not available)

However, the facts are;

 

 

Agreement would appear to be pre October, 2004 from the above information in post 33

[clutchingatstraws]

Don't mean to butt in but a question for Pt

ref post 56 does this relate to Dimond v. Lovell ?

Thanks

Cas

[tomterm8]

"we will determine your credit limit from time to time and give you notice of it"

 

Ist line directly underneath the heading Financial Information

 

Josie, no one likes a smartypants:p LOL.

 

Yes, it's there.

[pt2537]

Don't mean to butt in but a question for Pt

 

ref post 56 does this relate to Dimond v. Lovell ?

 

Thanks

 

Cas

 

Hi Cas

 

Nope its from the Wilson V FCT House of Lords ruling

 

regards

paul

[clutchingatstraws]

Ta will now look for that.

 

Cas

[Josie8]

Josie, no one likes a smartypants:p LOL.

 

Yes, it's there.

 

 

Just making sure the right defence is used .........................

[Rilly]

The account was opened in June '03. I can confirm that the CCA does not show a date and is not dated by me or the person who countersigned.

 

I'm beginning to get a little concerned that I'm getting a little out of my depth... what are the implications of a cancellable agreement?

 

rilly

[clutchingatstraws]

Cancellable agreements, 7 days to supply, No Date, could this be important?

[clutchingatstraws]

They can not make this up

[Rilly]

As I said, I am a little concerned the way this is going, and the fact that I now have less than four days to submit my allocation questionnaire. I have to say that I don't understand a good deal of the last few threads and believe I may be well out of my depth.

 

My main concern is how to word section G of the AQ - other information.

 

Could someone give me some guidance for that in light of the above?

[popeye1]

At the bottom right under Customer Consent it says

By signing this application form ,,,further on it says in brackets

[but onlyto the extent relevant where we do not accept your application].

Also at the top in bold

Thank you for taking the time to apply for an Accoumt card....could all these be worth noting

[pt2537]

Rilly,

 

you need to change the first point on the Draft order for directions i wrote asking for copy of cancellation notice and all other cancellation details sent in compliance with section 64 consumer Credit Act 1974

 

the rest of the AQ directions and section G info is still relevant as far as i can see because all the have sent you is a copy of the agreement

 

i will be around for an hour or so , so any questions ask away

 

regards

paul