Is this credit agreement enforceable?

[mikek]

Hello

 

I CCA'd Natwest for my credit card. They responded by sending the documents below: cover letter, photocopy of old terms and conditions, personalised computer printout of the current terms and conditions and copy of my last statement. My signature? Nowhere! This is an old account that was opened in 1997.

 

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Please give me your opinion if this is enforceable cause I think it is not. What is the next step?

 

Many thanks

[gyzmo]

Id say not - needs your signature on it. No signature - no enforceability. Someone please double check that - I'm sure its correct (and please look at my post asking the same!)

[davefirewalker]

No signature means either its unenforceable or more likely they have provided you with a "copy" (maybe remanufactured). Signatures are allowed to be left off a "copy" of an executed agreement

 

To take you to court they would NEED the original with your signature

 

When was this taken out ?

 

Dave

[mikek]

Hello davefirewalker.

 

Thanks for your response.

The card was taken out back in 1997. There has only ever been an application not an agreement like the one they sent. It has been remanufactured.

 

I wrote back to them saying they have not satisfied me and asked for a proper agreement with signature.

 

You reckon they may not have kept my signature?

[Jase1982]

Hello davefirewalker.

 

Thanks for your response.

The card was taken out back in 1997. There has only ever been an application not an agreement like the one they sent. It has been remanufactured.

 

I wrote back to them saying they have not satisfied me and asked for a proper agreement with signature.

 

You reckon they may not have kept my signature?

 

Surely the lack of signature would be a technicality? If you've had the card since 1997, have you been using it?

[mikek]

Yeap have been using it since 97 but not for some time now. Does this make any difference you think?

[Dileepan]

My current A/c gone overdrawn by bounced Direct debit and the bank (FIRST DIRECT)applied £30 penalty .and now it ended up with £345 outstand fully made

up with penalty charges and a default registered with all major CRA's

****CAN I REMOVE THIS DEFAULT***********

[Jase1982]

Yeap have been using it since 97 but not for some time now. Does this make any difference you think?

 

In my opinnion the fact you've been using the card indicates you accepted the financial package including T & C's, so no signature would be a technicality that may not be bought by a judge. I'm sure someone with better legal knowledge than me could answer better.

 

Logically thinking, the only way a person could use the, 'unsigned agreement' get out clause would be if you were claiming you never applied for the card. Which, as I say, after 11 years would be hard to believe.

 

Also, if you've been using the card, why are you claiming the agreement was not executed?

[mikek]

In my opinnion the fact you've been using the card indicates you accepted the financial package including T & C's, so no signature would be a technicality that may not be bought by a judge. I'm sure someone with better legal knowledge than me could answer better.

 

Logically thinking, the only way a person could use the, 'unsigned agreement' get out clause would be if you were claiming you never applied for the card. Which, as I say, after 11 years would be hard to believe.

 

Also, if you've been using the card, why are you claiming the agreement was not executed?

 

Jase1982, almost every single person that posts in these forums about CCA agreements has used up credit which they are finding difficult to repay one way or another (be it to an original creditor or to a DCA). If you are saying that using the credit constitutes de facto acceptance of T&C's and the agreement is deemed de facto executed, then maybe we should scrap some thousands of threads about enforeable CCA's as there is no point in discussing them, don't you think? Also banks and DCA's could always come back to debtors and say "look you used the credit, therefore you accepted the terms and conditions and the agreement was executed". Don't you think?

[Jase1982]

Jase1982, almost every single person that posts in these forums about CCA agreements has used up credit which they are finding difficult to repay one way or another (be it to an original creditor or to a DCA). If you are saying that using the credit constitutes de facto acceptance of T&C's and the agreement is deemed de facto executed, then maybe we should scrap some thousands of threads about enforeable CCA's as there is no point in discussing them, don't you think? Also banks and DCA's could always come back to debtors and say "look you used the credit, therefore you accepted the terms and conditions and the agreement was executed". Don't you think?

 

Could be an idea?!

 

If you've used the credit, then it is repayable regardless of a signature on a bit of paper.

 

If the courts are now accepting claims against financial organisations based on a lack of a signature, then I'm not surprised at the lack of communication and relations that exist between consumers and financial organisations.

 

Anyway, surely that's almost fraud? I could get credit tomorrow, wait a few years and hit them with a CCA????

 

I've read a few posts in reference to the CCA and lack of signature, so I'll back down if this type of persuit is deemed legal / morally / ethically correct etc etc, and actually works.

[mikek]

Could be an idea?!

 

If you've used the credit, then it is repayable regardless of a signature on a bit of paper.

I am not denying applying for the card or using up the credit. The debt exists but their agreement may be unenforceable i.e. I can pay it off under my own terms and without interest without stress. They have made 3 times as much from me in interest over these years.

 

If the courts are now accepting claims against financial organisations based on a lack of a signature, then I'm not surprised at the lack of communication and relations that exist between consumers and financial organisations.

I am not claiming anything from the bank.

 

Anyway, surely that's almost fraud? I could get credit tomorrow, wait a few years and hit them with a CCA????

There has been no fraud from either side: no false represntation or omissions in nformation etc. If the banks choose to take financial risks it is part of their money making game

 

I've read a few posts in reference to the CCA and lack of signature, so I'll back down if this type of persuit is deemed legal / morally / ethically correct etc etc, and actually works.

Do you think that the banks act legally, morally and ethically? If it actually works does it make it OK legally, morally or ethically? A bit of a utilitarian it would seem! Btw, I followed the procedure with a debt for a mail order company which had sold the debt to Robinson Way DCA. DCA backed off and closed the case as they had no CCA at all. Do you think they gave up the debt for no reason? Why did they not go to court and claim that since I collected the goods I should be paying for them? If you cannot produce a signed document in court, the court has no evidence of the agreement to enforce a debt. No signed CCA = no CCA at all in court.

Edited July 30, 2008 by mikek

[Jase1982]

Woooah, calm down! I wasn't trying to suggest you specifically were comitting fraud. You never mentioned anything regarding negotiating with your bank on a settlement. (That's what I would do, and have done)

 

Your original post was in reference to a non executed agreement, which would render the debt unenforceable?? unless I'm mistaken?

 

I'd be surprised if the bank in question didn't use in their defence....your honour, this man has paid xxx amount over a period of xxxx and clearly knew of the existance of this debt.

 

Whether the banks act morally is a separate issue to this thread, one which I do actually agree with you about.

 

similarily, I can't speak for the DCA in that instance. What was the sum involved? Did they own the debt? How old was it? Was it in their best interest to enforce the debt, CCA or no? There's many different reasons why they may have not persued your debt.

[Jase1982]

Do you think that the banks act legally, morally and ethically? If it actually works does it make it OK legally, morally or ethically? A bit of a utilitarian it would seem!

 

also, I don't understand this statement. Don't confuse CCAs with bank charges. By extortionately charging consumers, they are acting unetthically, agreed. Are you saying if they do it, it's ok for us to do the same???

 

By not filing the correct paperwork or crossing the right T's they are guilty only of an administrative error.

[mikek]

Its is not just the bank charges regime that makes the banks immoral, unfair and unethical. Do you think that the banks refusing to write off debts to third world countries is moral?

 

I did not know that they had an unenforceable agreement before reading this forum. I now now and want to reclaim my rights.

 

Do you think it was moral for the bank to increase my interest rate by 5% overnight? And for what reason? Because I only pay the minimum amount to them?

[Jase1982]

Its is not just the bank charges regime that makes the banks immoral, unfair and unethical. Do you think that the banks refusing to write off debts to third world countries is moral?

 

I did not know that they had an unenforceable agreement before reading this forum. I now now and want to reclaim my rights.

 

Do you think it was moral for the bank to increase my interest rate by 5% overnight? And for what reason? Because I only pay the minimum amount to them?

 

I know absolutely nothing about the third world debt problems, but it's a harsh reality of business unfortunately.

 

We're at a bit of a deadlock here, because my argument is that these agreements are enforceable because you (I am not directly aiming this at you, or judging you) have enjoyed the use of a financial package for a lengthy time period, making payments to the company in the process.

 

Bank charges are unlawful because the banks make a profit on top of a penalty, and are now challengeable under the unfair contract terms Act. Where as, increasing your interest by 5% is most likely covered in the contract that you agreed to....or didn't?...whatever the outcome of this argument is....

 

It is my understanding that an agreement would be executable minus a signature where benefit of a product / service has been received, over a period of time.

 

If you felt that they were acting unlawfully by increasing your interest rate, you could challenge it using the same act of parliament as bank charges...I presume...

[mikek]

Jase 1982, I posted on a new thread what I found in the CCA 1974, but just to respond to you:

 

no signature = not possible to enforce

 

As you mentioned that the third world countries debts to banks are an unfortunate business reality, so is this:

 

If the banks lose signed documents, they lose money; an unfortunate business reality.

 

Sorryyyyyy high street (and non) banks!

[davefirewalker]

I concur.....

 

No SIGNED agreement means no ENFORCEABLE debt......it can be shown that you have had the money and that some sort of contract exists....however in CERTAIN circunstances the CCA1974 overides normal contract law and equity.

 

this is one of those circumstances... google wilson v secretary of state (2003) or wilson v FCT (same case )

 

it was found that if an agreement was missing or had mistated the prescribed terms then the creditor had no recourse in law. if you had not signed it then no debt exists.......period.

 

No enforceable agreement often means that the t&c's have NO legal effect....therefore no right to vary the agreement or to add interest....???

 

sorry but this is not a moral decission...its down to law

 

Dave

[gyzmo]

quite agree. A lot of people seem to think that something like this is not possible or is cheating. It isn't. Its a mechanism deliberately inserted into law to prevent rogue lenders (and the more supposedly reputable ones) from claiming against people when they have no right to.

 

If a lender is so careless as to lose its paperwork, then that's the creditors fault. They are supposed to be professionals afterall.

 

be aware though that newer credit agreements can be enforced without a signature. Its down to the cout in such a case. Older ones though - the court has no discretion in the matter. Its a bit strange as this change came about as a result of a claim under the Human Rights Act in that the creditor, be virtue of the legislation being strict, had no chance to a fair trial. The law was changed, but it was not done so retrospectively (though it was considered).

[Jase1982]

I have no idea what this CCA thing stands for. It should be thrown out of court. Why it isn't is just another beaurocratic loophole, which is great for people avoiding a genuine debt. I stand by my point and I think the whole world has gone completely mad.

 

Anyone that agrees, and they did agree....until the CCA loophole was discovered....to receive credit appeared to be quite happy to accept the money??? or am I wrong? did they drug you and tie you to a lampost, saying sign your life away?

 

And before anyone quotes me, the law, again. I've understood it for a long time now, but this is the first time I've challenged it on here it....not signed, not enforceable. etc etc. A lot of these cases just seem to look like an easy way out of a genuine debt.

[mikek]

Jase1982, you sound bitter!

 

I read on another post that you are seeking to pay your council tax in installments. Maybe you should also have you rubbish collected from where you live in installments too! Why are you not paying the tax on time mate? Council People work for your service and need to get paid immediately in order to survive. Surely this has to have an anti-social dimension.

 

Same principle! Have a nice day!

[BlueSquirrel]

I kind of see where you are going with this Jase but if the credit card companies found that there was a clause in the agreement that said they could take your children and sell them into slavery if you missed a payment they would probably try and enforce it.

 

So, what's good for the goose....

[gyzmo]

I have no idea what this CCA thing stands for. It should be thrown out of court. Why it isn't is just another beaurocratic loophole, which is great for people avoiding a genuine debt. I stand by my point and I think the whole world has gone completely mad.

 

Anyone that agrees, and they did agree....until the CCA loophole was discovered....to receive credit appeared to be quite happy to accept the money??? or am I wrong? did they drug you and tie you to a lampost, saying sign your life away?

 

And before anyone quotes me, the law, again. I've understood it for a long time now, but this is the first time I've challenged it on here it....not signed, not enforceable. etc etc. A lot of these cases just seem to look like an easy way out of a genuine debt.

 

If you understand the law then you should understand what CCA means (Consumer Credit Act), but more importantly, you seem to be confusing morality with law. The two are not always the same.

 

The idea of the legislation is to ensure that the debtor has all the information ready and cam make comparisons to make an informed choice. The law ensures the information is in a clear order and format to prevent important info being hidden or omitted or misleading. It also ensures a strict systematic procedure for the agreement becoming enforceable.

 

True, there are quite a number of people who will use this to get out of debt. Noone is denying that. But imaging that this law was scrapped. What do you think would happen to someone who was told that their APR was in the thousands rather than the couple of percent stated by the lender on applying? O loan sharks looking to take advantage of the vulnerable?

 

These organisations are supposed to be professional and experts. It is for them to ensure they comply with the law. If they do not, then they face the consequences in the same way as anyone else.

 

Better that than allowing the market a free-for-all.

[Jase1982]

Jase1982, you sound bitter!

 

I read on another post that you are seeking to pay your council tax in installments. Maybe you should also have you rubbish collected from where you live in installments too! Why are you not paying the tax on time mate? Council People work for your service and need to get paid immediately in order to survive. Surely this has to have an anti-social dimension.

 

Same principle! Have a nice day!

 

Irrelevant. I'm not here discussing Council tax.

 

FYI....I moved in to a flat to help a mate out after he split up with his girlfriend and he had got behind with the payments. Because he's a mate and I know more than him, I said i'd look into it.

[Jase1982]

If you understand the law then you should understand what CCA means (Consumer Credit Act), but more importantly, you seem to be confusing morality with law. The two are not always the same.

 

The idea of the legislation is to ensure that the debtor has all the information ready and cam make comparisons to make an informed choice. The law ensures the information is in a clear order and format to prevent important info being hidden or omitted or misleading. It also ensures a strict systematic procedure for the agreement becoming enforceable.

 

True, there are quite a number of people who will use this to get out of debt. Noone is denying that. But imaging that this law was scrapped. What do you think would happen to someone who was told that their APR was in the thousands rather than the couple of percent stated by the lender on applying? O loan sharks looking to take advantage of the vulnerable?

 

These organisations are supposed to be professional and experts. It is for them to ensure they comply with the law. If they do not, then they face the consequences in the same way as anyone else.

 

Better that than allowing the market a free-for-all.

 

sorry, I don't want to sound like I'm deliberately goading people here because I'm 100% behind the fight against financial organisations.

 

I just don't understand the lack of a signature issue. When I've applied for a credit card, the first being 8 odd years ago. Capital One sent me a application form, I signed it and sent it back. Isn't that how credit is obtained?? unless you go into a local branch? I fail to believe that the key criteria for obtaining credit in the first place are not taken in and understood at the point of sale.

 

The OP had had his credit card since 1997, and had been using it. Fair enough, he MAY not have been fully informed on some matters, which I agree is something that is illegal. However a lot of people, not specifically the OP, have been happy to use the credit until they fall behind with payments, only to then CCA them....might be repeating myself here.

 

I don't agree with the argument from the OP that because the banks are "evil instituations" out to get us all, and act unethically, apparently, we should act the same way towards them. In my eyes, lack of a signature means nothing compared to the plight of many CAG members that fall foul of mounting unlawful bank charges.

 

Maybe I disagree with the law, more than how people use it to their benefit. After all, if they've been stupid enough like you say, to not cover every angle maybe we should exploit them.....

[mikek]

I am not trying to get out of this debt, I want to repay the capital only (interest free).

 

Also I am not behind with the minimum payments. I am up to date. I am disgusted though with the amount of money they have made from me by constantly increasing the interest to ridiculous figures, just because I only make the minimum payment (plus a few charges for exceeding my limit a couple of years ago)! for your info, Jase 1982, this is a platinum card we are talking about with an interest rate of 22APR%! It started off at 12.9% in 1997 and jumped 5% in the last year! Now if the bank values old customers who do not miss payments (but only make the minimum payment) by considering them high risk and therefore charging them more interest to recoup NOW potential (I repeat - potential) costs in case (I repeat - in case) they default IN THE FUTURE, then I have no guilty conscience for making them lose all interest! this is the way they operate: unethically and immorally. Sorry. no mercy for them from me!

 

Regards