Is this a valid consumer credit agreement?

[MBciti]

Hi

 

I have a problem with Citi Cards and requested a copy of the consumer credit agreement I sent the first request (as outlined by this site - thanks guys) on the 22nd september 2007 and included the £1 cheque as advised.

 

They failed to respond so i sent another request on the 11th of Oct 2007 with another £1 cheque, still no response, so I sent a 'default' letter (again as outlined on this site) on the 25th October 2007. I then sent them a Subject Access Request on the 19th December, to which they have not responded. But, they finally sent a copy of my original application form on the 28th February 2008. shown below...

 

They have charged me additional charges and interest during the period of default, and refused to refund it. I have not paid a penny on the account since it went into default. And as they have to refused to refund the additional charges and interest I have refered the matter to FOS.

 

 

 

My question are;

 

- does the application form constitute a Consumer Credit Agreement?

- what are my options regarding the timings of their response and further possible action?

 

Thanks in advance to anyone who can help

[gyzmo]

Its not an agreement - its an application form for credit which is entirely different. As to timing, they have committed an offence in not complying with requirements to supply a copy of the agreement. Also, even if that were an agreement, it does not comply with the regulations.

 

As for charges, a creditor is not entitled to enforce the contract, so they should not have added charges on. Glad you reported it to FOS - see what they say.

 

BTW - as they STILL haven't complied with the requirements they are still committing the offence

[MBciti]

whoopeee - thanks gyzmo - to be honest I thought as much. Am I right in assuming that if they can not produce a consumer credit agreement, they can not enforce the debt?

[gyzmo]

That is correct. It does not apply new agreements. Just as a warning though, I am still not totally au fait with this area (currently studying an awaiting results of assessment in this area). There is another thread which specifically deals with these issues, and regular posters there will be more familiar than I am with the requirements - you will be better posting there to get a response, though. I am sure that I am correct in what I have said.

[MBciti]

Could you please let me know where the proper thread for this type of post is?

[gyzmo]

http://www.consumeractiongroup.co.uk/forum/#black-consumer-forums-center

 

There you go - sorry for delay - lost my internet connection for a bit!

Like I said, they tend to b more knowledgeable about these than I am.

[Weird Al Yankovic]

Hello poster.

 

It is quite clearly an application for credit.

 

Also, why did you send another £1 payment for the agreement just because they ignored the first?

 

And why did you send them a 'default' letter? As far as I'm aware there is no need to do this. It is for them to comply with the law.

[Conniff]

As they have not complied MB, ask them to reimburse your £2, they have kept that under false pretences.

[MBciti]

Thanks for all the responses

 

The reason for the second £1 was benefit of doubt that they had received the first one - they didn't cash the first cheque until they had received the second one???

[robcag]

Hi MBciti

 

I just searched for this thread after reading your requests in another thread. Perhaps you ought to post a link to this thread in the other thread to direct people here as suggested?

 

Anyway two further things strike me about your application form, neither of which may turn out to be relevant.

1. You have checked neither of the 'yes' or 'no' boxes in the PPI section (Cardholder Repayment Protection), so it would be interesting to know if you were ever charged for this.

 

2. I note that the original card was supplied by 'The Associates'. I too had one of these, and some time later the account was taken over by Citicard. Some time after that (2 years ago maybe) Citicard decided to combine that (now Citicard) account with another Citicard account (ISTR formerly Peoples Bank) which I also had. The same thing happened to 2 individual Citicard accounts (formerly Peoples Bank) held by my partner at around the same time. There was no choice for the customer in this action, and no further agreements were signed. If this has also happened to you then it may be relevant as I suspect that the agreement from the other account would also have to be produced.

Good luck

Rob

[MBciti]

Thanks for the info Rob

 

I have taken that this is an eligble consumer credit agreement and have now offered to pay the standard minimum payment until I get an outcome from FOS.

 

I'm so sick of all this to be honest and a little fed up that the consumer credit act 1974 and requesting CCA's doesn't seem to offer consumers any real protection in any way. I am willing to fight this to the end, but am confused about my options. It seems (from the other thread) that this 'application form' is a valid consumer credit agreement.... I'm not sure what would happen if I said stuff it, and refused to pay them based on the fact that I do not have an agreement with Citi Cards and only have this application form from Citi cards.

 

When this all started way back in Sept 07 I was confident this debt was not mine, now I'm not sure, but, they have messed me around so much and for so long with providing just this 'application form' that I want to make them pay for the messing around. My plans and actions so far;

 

- I have forwarded the complaint to FOS and await their response.

- I have writen to Citi and confirmed that I have finaly received the application form and made an offer of minimum payments until we get the outcome from FOS.

- I have made a minimum (3%) payment on the outstanding balance

- I have made a complaint to the Office of fair trading (they are not really bothered, but gave me a reference number - Big deal)

- ICO inform me that they do not take on individual cases, so I have asked them to record the information in case they get more complaints, they have assured me they have logged the details, but I'm sure they are just playing lip service.

 

- I am now contemplating issueing a CCJ for the additional charges, associated costs and stress caused by dealing with this crap.

 

But I'm not sure what else I can do, seems like they have you by the wotsits even when they fail to comply with the Act.

[Enron]

Citi will try and confuse you as much as possible, it's standard tactic at least in penalty charge claims.

 

And obviously any interpretation of the law they give is going to be in their favour. As it stands they are in the wrong in not providing you a copy of your agreement.

 

So your concern is to try and obtain default removal more than any other part.

[Guest Gertie100]

Slightly confused here - it is not a copy of the CCA, but just an application form, so why have you accepted it as the CCA and paid money on this account?

I appreciate this can be a horrendous time when trying to educate these people in the legality of the law, but we all need to stick to our guns and not be intimidated!

[gh2008]

As one of the posters in the other the other thread who has advised that IMHO this agreement could be enforced by a Court Order, could someone please explain why they consider it irredeemably unenforceable.

 

I have concentrated on the, signed by both parties, lower half of the front face of the document and the reverse side, referenced from the front.

 

gh

[ReasonableRon]

As one of the posters in the other the other thread who has advised that IMHO this agreement could be enforced by a Court Order, could someone please explain why they consider it irredeemably unenforceable.

 

I have concentrated on the, signed by both parties, lower half of the front face of the document and the reverse side, referenced from the front.

 

gh

I agree.

 

I do not understand why other posters have said this is not a CCA when it is clearly a combined application form and CCA, as was common with most if not all credit card providers from the 1980's onwards. I am not qualified to comment on its enforceability, although if a court order was needed they would probably get one no problem, but I would suggest trying to take action against them for not actually supplying a copy of the CCA would be a little misguided.

[Weird Al Yankovic]

I agree.

 

I do not understand why other posters have said this is not a CCA when it is clearly a combined application form and CCA,

 

I'm quite confused with this statement.

 

You seem to be suggesting that should one complete an application form for credit then, at the same time, an agreement for credit is then also in force because you say they are 'combined.'

 

This is not how it works and which is why there are credit applications and credit agreements. They are not the same.

 

The card provider has simply shown that the poster has applied for credit.

 

I sent off a job application today. Does that prove anything other than I have applied for a job?

[ReasonableRon]

The customer declaration makes it fairly clear that the conditions of the agreement will apply 'if the application is successful'.

 

The customer signature box contains the statutory wording "This is a credit agreement regulated by the consumer credit act 1974 - sign it only if you want to be legally bound by its terms".

 

This type of combined form used to be commonplace - I worked for a bank in the 80's and can clearly remember the credit card leaflets with combined application forms/agreements. The agreement part only mattered if the application was successful.

[Weird Al Yankovic]

The customer declaration makes it fairly clear that the conditions of the agreement will apply 'if the application is successful'. Which is why an 'agreement' needs to be issued. Should a court only require an application to enforce?

 

The customer signature box contains the statutory wording "This is a credit agreement regulated by the consumer credit act 1974 - sign it only if you want to be legally bound by its terms". And those terms have to be properly legally presented to the applicant in the first place.

The provider doesn't even appear to have anything as basic as their address which is a prescribed term.

I don't believe a court is able to ignore that fact-it is powerless.

 

This type of combined form used to be commonplace - I worked for a bank in the 80's and can clearly remember the credit card leaflets with combined application forms/agreements. The agreement part only mattered if the application was successful.

 

Also, the provider has taken almost four months to satisfy the legal obligations of a CCA request. And has still failed to produce what was asked for.

[gh2008]

I'm quite confused with this statement.

 

You seem to be suggesting that should one complete an application form for credit then, at the same time, an agreement for credit is then also in force because you say they are 'combined.'

No, the agreement does not become executed until the creditor also agrees, signs and dates it

 

This is not how it works and which is why there are credit applications and credit agreements. They are not the same.

I will agree entirely with all of these arguments if you can find anywhere in the Act that says the agreement document cannot contain an application form.

 

The card provider has simply shown that the poster has applied for credit.

except the signature box is clearly marked "This is a credit agreement ....." and the document as a whole contains all the prescribed terms.

Any other required terms such as creditors address even the creditors signature can be overidden and the alleged debt enforced by a Court Order

I sent off a job application today. Does that prove anything other than I have applied for a job?

 

If the application form was combined with a contract of employment which contained all the t&c's for your employment, you signed the form agreeing that, if you got the job, you would comply with those t&c's however you also accepted the right to refuse/cancel, once accepted and then, subsequent to your application the employer approved, signed & dated it then yes, I guess it would.

[Weird Al Yankovic]

If the application form was combined with a contract of employment which contained all the t&c's for your employment, you signed the form agreeing that, if you got the job, you would comply with those t&c's however you also accepted the right to refuse/cancel, once accepted and then, subsequent to your application the employer approved, signed & dated it then yes, I guess it would.

 

Wouldn't the above, in effect, be an agreement for an employment rather than what I first posted, a job application?

 

 

Also, Barclays Bank attempted to take me to court having only an 'application form.'

 

I pointed out this in my defence and they had 30 days to decide whether or not to pursue thier case against me. They decided not to.

 

One can only assume that they would not have been able to enforce it.

[gh2008]

Ok, as no-one has produced any Law as to say why an agreement document cannot contain an application form I will explain why I think it can.

 

For an agreement to be unenforceable in a court we need to look at section 127(3). This is really important as this is the section upon everyone relies on when either defending against or claiming solely for an unenforceable agreement under the 'CCA'

(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).

 

Section 61(1)(a) refers to form & content, any deviation from this making an agreement 'improperly executed'

 

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

 

Now Section 65(1) states

 

65 Consequences of improper execution

(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

Basically saying any agreement is enforceable - However, section 127(3) states that it can only be enforced if there is a document in some form or another, signed by the debtor (does not need to be signed by creditor) which contains all the prescribed terms.

 

The prescribed terms are contained in Schedule 6 Column 2 and have been repeated many times, but are as below

 

I do feel, given the above, that a document be it an application form or not, if it contains the prescribed terms and was signed by the debtor then it could be enforced as a valid agreement by the Court.

 

As to whether it would ...... well that's another thread

 

All IMO of course

 

gh

[pt2537]

Gh2008

 

 

you are completely correct, the words Application mean nowt im afraid, if the documents contains the title credit agreement regulated by the Consumer Credit Act 1974 and contains the prescribed terms required for the type of credit being issued and hte document is signed by creditor and debtor a court can enforce the document as an agreement and issue an order pursuant to section 65(1)

[pt2537]

thread moved to the general debt forums.

[Weird Al Yankovic]

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

(b) section 64(1) was not complied with.

Which refers to the following-

64 Duty to give notice of cancellation rights

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

(a) must be included in every copy given to the debtor or hirer under section 62 or 63, and

(b) except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

There is no way around this particular part.

I cannot see the address of the credit provider on the application/agreement anywhere on the documents.

[pt2537]

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

 

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

 

 

(b) section 64(1) was not complied with.

 

 

Which refers to the following-

 

 

64 Duty to give notice of cancellation rights

 

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

 

(a) must be included in every copy given to the debtor or hirer under section 62 or 63, and

 

(b) except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

 

There is no way around this particular part.

 

I cannot see the address of the credit provider on the application/agreement anywhere on the documents.

 

 

 

Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 895 (31st January, 1997)

 

have a read of that case, it sets out the issues surrounding the sections of the act youve quoted;)