Barclaycard CCA documents enclosed

[lisagav69]

Was having help from Paul on this one in another thread but as the thread contained 3 different accounts I've made a seperate thread for each now as not to get confused!

 

further help on this is appriciated as this one has me stumped!!

 

 

 

 

 

[R B 1968]

Bump

[Pinky69]

This is an application form and not a credit agreement. A credit card credit agreement must have:

Quote:

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit

 

A term stating the rate of any interest on the credit to be provided under the agreement

 

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

(from schedule 6 of Consumer Credit (Agreements) Regulations 1983)

 

In addition to your signature, it must show a credit limit and the applicable rate of interest - it shows neither. This is the form you completed when you applied for the card.

[lisagav69]

That's what i thought and was a bit suss when they explained what my limit was in the cover letter as they know it's meant to be on the bit I signed. I'm a bit surprised though as it's a fairly new card, only started in mid 2004.

 

There is only thing confusing me which I'm hoping someone can clear up.

 

I have 3 lots off CCA documents at the moment all of which appear to be application forms but where I've signed it, just above it says:

 

'This is a credit agreement regulated by the Consumer Credit Act 1974. Sign only if you wanrt to be leagally bound by it's terms'.

 

I guess I now fire off the letter about how it's not the correct document and they have so many weeks to provide the proper one?

 

[Titch_76]

help ive just posted a thread about cca and cant find it

[Justforfun]

help ive just posted a thread about cca and cant find it

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/127538-please-help-cca-sent.html

[Pinky69]

If they don't have the prescribed terms, they are not credit agreements. There are lots of posts around that state what the prescribed terms are. Some advocate sending off letters giving a full account of why they are not credit agreements but I keep it simple and just state that what they sent is not a credit agreement and they remain in default. Then I just ignore them because there is nothing they can do if they don't have an enforceable credit agreement. There is time enough to quote the relevant legislation if they ever take you to court. They won't if they don't have a legal agreement because they need to produce the original in court.

[Having_A_Knightmare]

Pinky

 

This is an application form but it looks like some of the perscribed terms are in the 2nd Doc.

 

If these where on the back of the application form it may be an issue.

[Pinky69]

The second document is the Terms and Conditions. The prescribed terms missing are the credit limit and the rate of interest on the account. These must be on the same page as the signature of the debtor.

[Goldlady]

Is there a date on the T&Cs anywhere - usually bottom right corner. B'card sent me copy of application form from 1996 and T&Cs dated 04/07;)

[lisagav69]

Is there a date on the T&Cs anywhere - usually bottom right corner. B'card sent me copy of application form from 1996 and T&Cs dated 04/07;)

 

 

In the bottom it says ICR/A/0604 which I take it is June 2004? The card was took out in August 2004.

 

Do you think it's ok to send them a letter saying it doesn't contain certain points such as credit limit and until they produce said document I shall be sending token payments?

 

Or should I just send an I&E form to Mercers and get a payment plan sorted?

 

 

Thank you for pointing out where the date is on the T&C's though! That's made my NatWest account even more fun to deal with!

 

 

Comments on these documents would be appriciated too

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/127409-tesco-cca-documents-enclosed.html

[lisagav69]

Pinky

 

This is an application form but it looks like some of the perscribed terms are in the 2nd Doc.

 

If these where on the back of the application form it may be an issue.

 

 

these documents were in another thread but have been moved here on to it's on thread and originally was having help from pt2537 and he commented on the crease mark on the application form.....could this have something to do with what you are saying?

[NailPost]

I can't see a signature in the "Bank Use only" box. This means it isn't an executed agreement signed by both sides.

[lisagav69]

Conflicting posts so not sure where to go with this one!

 

I'm quite happy to make a payment plan with them. The whole idea of doing these requests was to get my monthly payments lowered. I am currently unemployed while looking after our daughter fulltime and they were wanting £90 a month which we just do not have spare.

[Rtech]

Surely then your options are :-

1) Accept the docs they've sent you,as ENFORCEABLE,therefore I cannot see how you can use that to reduce payments,and are no further forward than when you started.....OR

2) Accept the docs they've sent you as UN-ENFORCEABLE.therefore you can legally make no payments.......OR

3) Accept para 2 above,but for moral reasons(ie you will happily pay) wish to make only repayments you can afford.

 

Reading between the lines,would assume that option three would sit better with yourself..in which case you just have to make the DCA see that.

[sosumi]

They've written that 'this completes our obligation to supply...' - so it's a bit of a con, just like my two. FWIW, I think I have to reply to say 'Well no it isn't...' as formally as possible. I want to keep paying too, but want a line drawn in the sand. No more DCAs!

[Slartibartfast]

The second document is the Terms and Conditions. The prescribed terms missing are the credit limit and the rate of interest on the account. These must be on the same page as the signature of the debtor.

 

Arguments seems to go around in circles due to the complexity of the Act and Regs which I'm trying to understand as much as possible. Could you tell me where it refers to the prescribed terms being on the same page as the signature?

[Having_A_Knightmare]

The second document is the Terms and Conditions. The prescribed terms missing are the credit limit and the rate of interest on the account. These must be on the same page as the signature of the debtor.

 

This IMHO this incorrect.

 

If the Perscribed terms are on the reverse of the document then you could have a problem.

 

HAK

[JB_]

I don't know whether this helps or just confuses more, but it is based on my (albeit limited) understanding of The Consumer Credit Act 1974 and The Consumer Credit (Agreements) (Amendment) Regulations 2004.

 

Parliament regulates the contents of the form through s 60 CCA 1974, delegating authority to the Secretary of State.

 

The Consumer Credit Act 1974

60 Form and content of agreements

(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 Signing of agreement

(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.

The actual form is then set out through the Consumer Credit (Agreements) Regulations 1983 (As Amended). Please note the links are to the 2004 SI that amends it as I didn't have a publically accessible link to the 1983 Regulation to hand. Please see the relevant SI and Schedules for more information.

 

The Consumer Credit (Agreements) (Amendment) Regulations 2004

 

[The substitutions referred to start at r 4 of the 2004 SI, the numbering below refers to r 2 of the 1983 SI, ie r 2(4)]

 

(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain, shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below -

(a) the nature of the agreement[...];

(b) the parties to the agreement[..];

© under the heading "Key Financial Information", the financial and related particulars[...];

(d) under the heading "Other Financial Information", the financial and related particulars [...];

(e) under the heading "Key Information" -

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies[...]; and

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below;

I hear about issues with the placement on the front or back of the sheet. As the text required and the order in which is it placed is mandated by legislation, how would the placement issue give rise to an argument as long as they followed the directions in the SI? It would take us to a point where the font-size must be small enough to fit everything on one page, potentially making it 'not properly executed' as it is not 'readily legible' under s 61(1)© CCA 1974 quoted above! What about partially-sighted people who may require extra large print?

 

I am not trying to pick holes but I am genuinely interested as to any case law that I missed when looking at this. Please be gentle if I've missed something blimmin' obvious

[Goldlady]

JB that is a brilliant observation. They have to fit so much in that the small print becomes illegible so the agreement is unenforceable anyway. So the Consumer Credit Act creates a lose-lose situation for the creditors.

 

They need to buy some A3 paper.

[JB_]

JB that is a brilliant observation.

 

Flattery gets you everywhere

[Pinky69]

There is no credit limit or interest rate on this document and it is clearly an application form. To be precise, the signature has to be on the same section as the prescribed terms ie the credit limit and interest rate - whether it is over the page or not is academic as long as it is in the same section ie the section that contains the prescribed terms. What they have sent is not a credit agreement.

[JB_]

Thank you for the clairification, that makes a lot of sense.

 

I was not questioning whether the document constituted a CCA. I was intrigued why I kept hearing people say the signature had to be on the same page. From your explanation I can see why they may have that idea.

 

I might not be much help but I certainly am learning a lot around here

[Slartibartfast]

Interesting. There is a part in the Regs 1983 that adds to where the above quoted 2004 amendment talks about order:

"...and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a whole and shall not be preceded by any information apart from trade names, logos or the reference number of the agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross references to the terms of the agreement."

 

Still trying to piece this all together.

[Pinky69]

Slarti - do you have access to the 1983 regs? No one seems to be able to find it. I need to study it further in depth to work on a paticularly difficult credit agreement I am currently disputing - thanks