Cap 1 valid agreement???

[maria28]

I have received a response to my request for a copy of a valid agreement. Can anyone please help to confirm if this is valid or not?

 

[car2403]

Hi

 

This is an application form.

 

An application form can become a credit agreement but it must contain the prescribed terms - prescribed terms for a credit card are credit limit, interest rate and mode/method of payment. From what I can see, this "agreement" has none of these.

 

Have you been sent terms and conditions, or any other document with this? Doesn't matter really, as the prescribed terms have to be in the signature document - which isn't the case here.

 

Also, it should have the required information (alongside the prescribed terms) as s.60/s.61 CCA 1974;

 

60.—(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b)the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d)any other matters which, in the opinion of the Secretary of State, it is desirable

for him to know about in connection with the agreement

 

61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)the document embodies all the terms of the agreement, other than implied terms, and

©the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

So, this doesn't contain any prescribed terms, or the rights and duties on you, (no details of payments to be made, etc) or protection and remedies available under the Act.

 

It can't be said that this is an enforceable credit agreement due to s.127(3);

 

(3)

The court shall not make an enforcement order under section 65(1) if section

61(1)(a) (signing of agreements) was not complied with unless a document (whether

or not in the prescribed form and complying with regulations under section 60(1))

itself containing all the prescribed terms of the agreement was signed by the debtor or

hirer (whether or not in the prescribed manner).

[Having_A_Knightmare]

As Car says totally unenforcable. Why do I not get ones like this:)

 

Fire them this letter of below alter to suit. It did the job for my friend:

 

Thank you for your letter dated 5th October 2007 where it was requested for specific details of the terms that are not included in the documentation.

When a debtor requests a credit agreement and all other documents referred to it, (original T&C) under section 78 of the Consumer Credit Act, the Creditor has 12 days to send a true copy to the debtor. If the creditor does not send the agreement in this time the account goes into default until such document is provided.

Section 61 of the act explains which information should be in the agreement. These are as follows:

Ø Repayments

 

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:

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

Ø Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement.

Ø Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

None of the above or the original terms and conditions are on the document that was sent to me.

Therefore the account remains in default as under section 78(6). I would also like noted that as from the 3rd November 2007, failure to produce a valid agreement becomes a criminal offence that is reportable to Trading Standards.

Under section 127(3) this agreement is unenforceable and I would like noted the outcome of the Wilson & Anr v Hurstanger Ltd [2007] EWCA Civ 299 case below:

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 single that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

My request for a copy of the credit agreement is still outstanding and I will be making no more payments until you provide me with the agreement.

Good Luck

HAK

[maria28]

Thanks, it's what I was hoping to hear. Will get the letter posted recorded delivery on Monday and wait for a response.

[paulwlton]

It does make reference to sec 23 of the agreement overleaf, could it be the prescribed terms are on the back of the form?.

 

Paul

[maria28]

There is nothing on the back. They have sent me a photcopy of the form and it's only 1 page.

[paulwlton]

SNAP!

 

 

[maria28]

Good luck to you. I've got my letter ready to be posted recorded delivery tomorrow. They have until 17 Jan to respond.

[Having_A_Knightmare]

Not seen that before Paul:

 

Ultra short Application Certificate:D

[The GodMother]

That looks like the application form that l signed 3 years ago.

 

I have just finnised paying them off and l am getting rid of the card

[out of cash]

hi,

 

i was told by a solicitor that the prescibed terms do not have to be in signiture document what do you make of that for useless advice then was he correct with this?

[paulwlton]

hi,

 

i was told by a solicitor that the prescibed terms do not have to be in signiture document what do you make of that for useless advice then was he correct with this?

 

Didnt you ask the solicitor how he came to this incorrect conclusion.

 

Paul

[The GodMother]

Maybe he was not incorrect but he did not understand the consumer law stuff.

 

Chrissi

[maria28]

So I recieved the following reply from Capital One today regarding the above. I sent them the letter advised on here. Dont know what my next step should be. Any advice?

 

 

 

 

 

[The GodMother]

ok these ppl have obviously forgot there brain and there glasses.

 

The act clearly states that the t&cs from when the account was opened need to be supplied as well as a true copy of the credit agreement you sign before the opening of the account.

 

Now what the have admitted to doing does not comply with the consumer credit act of 1974. They have clearly stated they have provided you with a copy of there current t&cs and a short application form.

 

I think you should write to them saying summing like this.

 

Thank you for your letter dated ****** 2008.

 

I am disappointed that you feel your are unable to comply with the consumer credit act of 1974 and as a result of your non compliance l will not be honouring payments towards this account.

 

You have only supplied me with a copy of my short application form. The consumer credit act 1974 clearly states that you have to send me a true copy of my signed credit agreement. An application form is not a true copy of my consumer credit agreement.

 

You have also stated that you have sent me a copy of the current t&cs. The consumer credit act of 1974 clearly states that you have to supply me with the t&cs relating to when l opened the account. The current t&cs do not comply with when l opened the account in april 2004.

 

As you cannot supply me with the true copies of these agreement then it makes the account unenforcable and you are not allowed to enforce the account which includes asking me to pay the account and passing the account on to a DCA.

 

Yours

BLAH.

 

You dont have to use this letter but l would ask pt2537/curlyben for there advise they may have a better letter for you to send.

 

Chrissi

[Having_A_Knightmare]

Hi

Another letter if needed

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY.

I am writing regarding your letter dated xxxxxx2007

On the xxxxx2007 I requested as my right under the Consumer Credit act 1974 for a copy of my credit agreement and all other document relating to the account.

You replied by sending me a copy of my card application form. This form does not comply with section 60(1) of the said act therefore the account is default as Section 78(1) of the act.

I would like to remind you that you are now committing an offence under section 78(1) of the Consumer Credit Act 1974. In your letter you are threatening me with Court action and again this is an offence under section 78(6)(a) of the same act.

As you have committed a serious offence I am going to report you to my Trading Standard Department to start criminal proceedings against Capital One. I have also been advised by my local Magistrates Court that this offence carries up to a £2500 fine and a six months prison sentence to the director of the company.

Please also treat this letter as a formal complaint so I can pass the information on to the FOS.

Until my credit agreement arrives at my door I will be making no more payments as this is my right under the Consumer Credit Act 1974. Any threatening letters you send will be passed straight to Trading Standards for more evidence about the offence committed under section 78(6)(a) of the act.

[The GodMother]

HAK your letter is better than mine. I was making it up as i went along.

 

Chrissi

[maria28]

So I send this letter, report them to Trading Standards and Financial Ombdusmun then yeah?

 

Is there a guide on here how to do those things?

 

Thanks

[Having_A_Knightmare]

Hi

 

i would send the letter first and see what the responce is.

 

HAK

[maria28]

Thanks. I'll send the first letter and see what happens.

[The GodMother]

print dont sign your name and send recorded delivery.

 

Chrissi

[maria28]

Thanks. Will do.

[The GodMother]

yw.

[paulwlton]

I would take the application form down to your local TS along with the relevant regs to substantiate your claim, and ask the question - Do Capital one remain in default?

[maria28]

I've not received a response from Cap 1 to the letter sent to them as suggested. Ms Renshaw is not playing ball