John Lewis Cca?? ***WON*** struck out

[guzzleguts]

Hi

 

Posted a thread earlier but was advised to split CCA's into seperate threads

 

I would be grateful if anyone could have a look at the attached CCA and advised if it is enforceable

 

Many Thanks

 

[creditcardmug]

Hi, i cant see any prescribed terms on there so its unenforceable IMO.

[guzzleguts]

Thanks ccm

 

guz

[guzzleguts]

would appreciate any advice what to do next

thanks guz

[Josie8]

Hi

 

Posted a thread earlier but was advised to split CCA's into seperate threads

 

I would be grateful if anyone could have a look at the attached CCA and advised if it is enforceable

 

Many Thanks

 

 

Yes unenforceable.

 

As to next step - what is your current position with the creditor?

[guzzleguts]

Thanks again josie

Was on a reduced payment plan with creditor,and some charges were being added monthly we were getting nowhere, so came across this wonderful site and sent a cca request.

this was there reply.

guz

[Josie8]

Well any payments you make from this point are voluntary and can't be reclaimed as the law currently stands so possible options are:

 

1. Make application to court under s.142 CCA for declaration that agreement is unenforceable

 

2. Try & negotiate a full & final settlement deducting any interest you have paid over the years

 

3. Stop paying and let creditor sue you and then ask court for declaration of unenforceability

 

4. Keep paying

 

Sure other peeps out there will have other suggestions too................

[guzzleguts]

Thanks very much josie, your a star

 

guz

[banker_rhymes_with]

Hello Guz!

 

Thanks for the PM, it's always best to discuss this in the Forums, because advice via PM may not be accurate, and anything said is not then visible to others who may spot the mistakes. PM is best if you need to send a quick confidential message that you otherwise don't want the bankers to see in public.

 

The alleged Agreement is not Enforceable as shown above, but you must allow for the fact that they may have an Original Copy, and it's possible there may be other Terms on the back of it. Probably unlikely, otherwise why have they not sent you a Copy?

 

I can't see any obvious signs of anything being on the back, as you cannot see any bleed through from the rear suggesting there is some additional Text. Likewise, I can't see any mention of you having to read anything overleaf.

 

So, based on the above, it does not appear to be an Agreement as it stands. It's clearly just an Application Form that they would like to become an Agreement once completed by you, Signed by you and then Signed by them. But, without the Prescribed Terms, it cannot turn from one to the other. It remains just an Application Form, despite the scary looking headings and statements about the Consumer Credit Act and being bound by its Terms if you Sign (that binds them too, so it's a two sided thing, and they have not followed the requirements that they must follow if this is to become an Agreement).

 

This also pre-dates the Consumer Credit Act 2006, so Section 127(3) still applies to this Agreement, meaning a Court cannot Enforce it if it is indeed missing the Prescribed Terms. That's why I say do allow for the fact that they may have the Original, and it may have something else on the back of it. But, if this is all they have, then it's not an Agreement. Likewise, if they only have a Copy, then this is not an Agreement, as they would need to produce the Original in Court to be taken seriously, and that would need to have the Prescribed Terms on the back or else they would have no chance.

 

*****

 

UPDATE: what follows in red is sadly, not correct for GG's Application Form, because the details below did not come into force until early 2005, as I have later found out. It only applies to Agreements made after around May 2005.

 

This section is still useful to know, so I've left it in for general information, but for the purposes of looking at GG's Application Form, it does not help. Please therefore read this part in red, but do not use it unless your Application Form/Agreement is from around May 2005 onwards.

 

They may have the Agreement Heading incorrect. Under Regulation 2(1) to the Consumer Credit (Agreements) Regulations 1983, for the document to be regarded as an Agreement it would need to have been headed (note the word Card is missing on your Application Form):

Credit Card Agreement Regulated by the Consumer Credit Act 1974

That's if it is to be in accordance with the Column 2 Information appearing at 1(d) of Schedule 1.

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words--

 

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

 

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

 

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

 

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require.

 

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--"Credit Agreement regulated by the Consumer Credit Act 1974".

 

(3) Where the document and a pawn-receipt are combined, the words ", and Pawn Receipt," shall be inserted in the heading after the word "Agreement".

 

(4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word "partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate.

 

(5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the heading.

****

 

What to do next is where it gets messy, as they will not take this lying down. Irrespective of what they should, and should not do, almost every Credit Card banker will get stroppy when you elect to stop Paying them.

 

However, if they have failed to produce evidence of an Enforceable Agreement, then you can stop Paying them.

 

As Joise8 has pointed out, these are your main options:

 

1. Make application to court under s.142 CCA for declaration that Agreement is unenforceable.

 

2. Try & negotiate a Full & Final Settlement deducting any interest you have paid over the years.

 

3. Stop paying and let Creditor sue you and then ask the Court for declaration of unenforceability.

 

4. Keep Paying.

The other factor is once you stop Paying them, then they will start to knee-jerk into various measures, including adding Late Payment Markers to the Credit Reference Agencies (CRAs), then later they may also send you a Default Notice and then they may add a Default Marker to the CRAs as well.

 

I don't know how John Lewis behaves, or not, but do know they have the usual Telephone Threat Monkeys, so it would not be too surprising if they started Telephone Harassment to try and force you to start Paying again.

 

If this were me, and this has to be your own decision, then I'd drop them a line to say the Document they have sent is just an Application Form, so they have not demonstrated that an Agreement exists. You will therefore stop Paying them until such time as they do produce a properly executed Regulated Credit Card Agreement.

 

The properly executed bit is important, as it can't be properly without the Prescribed Terms.

 

In case they intend to start Telephone Harassment, then I'd also add a paragraph or two to warn them against that, and I'd also remove any implied right to come and visit you...that's to stop any silly Threats about sending Debt Collectors or Door Step Callers. There are Template Letters for the above, but if you need any help with them, then just shout, and people will point you in the right direction.

 

In the interim, I'd get your facts and figures all ready, so that you know where you stand on this in terms of the numbers. If you have all of your Statements, then I'd go through them and make sure you have all of the Big Numbers to hand, by that, I mean:

 

A Total of how much you spent.

 

B Total of any Unlawful Charges (Late Fees, Over-Limit Fees etc).

 

C Total of any Lawful Charges, if any.

 

D Total of any Payment Protection Insurance (PPI), if any.

 

E Total Interest they charged.

 

F Total of how much you repaid.

 

Add up A to E and take off F, and that should match the Balance of the Card.

 

However, if there's a B and a D, these can be re-claimed.

 

Also, just to show where you really stand in terms of how much money really changed hands, take F from A and see if it is positive or Negative. If it's Negative, then you have Paid them more than you have ever spent, if Positive, then the amount is how much you ended up getting from them that has not been repaid. That is effectively the true Balance.

 

Often, this can be very sobering. Many find they have Paid back more than they ever spent. Anyone who has had a Credit Card near the Credit Limit for several Years has nearly always Paid back more than they ever Spent. Thus, with no Agreement, there is no Debt, period. They owe you.

 

If there is no Agreement, then they never had any Right to charge Interest and other fees, which is why I have ignored them in the above A-F calculation. Likewise, any money they did give you over and above what you repaid, is effectively a Gift. That is their penalty for failing to organise the very Agreement they needed to charge Interest and Fees, and to force you to repay both them and any surplus of money you Spent over money you Repaid.

 

If you do not have all of your Statements, then I would invest in £10 and send them a S.A.R - (Subject Access Request). In any event, that should produce a 2nd Copy of your alleged Agreement, which would be useful to see, i.e. in case they reveal some Terms you had not otherwise seen before.

 

If you now see my point, examining the Big Numbers, is important, because if you are like me, I want to know the true position.

 

If you have Paid them back more than you ever Spent then, in my opinion, you can ask for that back, as this is money you Paid to them in error, as there was no Agreement requiring you to Pay back more than you Spent.

 

If it's the other way around, then it's up to you. Morals don't come into this, because Morals were absent when they set the Interest Rates that inflated the Debt. If they do have an Enforceable Agreement, then they will not stoop to consider your position and they will take you to Court for everything, i.e. Interest, Charges...the Full Balance. Whereas, if they don't have an Enforceable Agreement, then they never had any Right to any of these extras. If they have over-paid in your favour, that, in the eyes of the Law, is effectively a Gift, and a punishment on them for being daft enough to set out on this path without that vital Agreement.

 

The Agreement was all they had to get right. If they have failed to get that right, then they only have themselves to blame.

 

Summary

 

What you do next is up to you, read and re-read the above, and then take it from there. Ask questions here, because you must understand that they will kick up no matter how right you are.

 

Be prepared for Harassment via Telephone, and be prepared for adverse Data on the CRAs. Warn them not to do this, but allow for the fact that they may well try to harm your Financial Reputation. Whilst you can address that, it's not easy.

 

Thus, once you know the true position in terms of who owes who, you may find that the real Balance is small. You could offer them that and say that's your Full & Final Offer to square this away with no hard feelings.

 

Taking them to Court to have the Agreement declared Unenforceable is an option, but then you risk them finding the Original that does have the Prescribed Terms, and then it could all go against you.

 

It's often best to let them come for you, as then they can be seen off via a strong Defence and potential Counter-Claim for any money they owe you, i.e. the Balance of what you Repaid over what you Spent, for example, or a Counter-Claim for Harassment, or for Damage to your Financial Reputation if they have indeed added adverse Data to the CRAs without due cause.

 

As always, this is just my opinion. If you are unsure about anything, then ask, and do consider seeking Legal Advice before doing anything.

 

Cheers,

BRW

Edited June 30, 2009 by banker_rhymes_with
Typo and Clarity.

[Misscynical]

Hi Guz, you have the same application form as me and where JL have signed the date on your agreement the date is also unrecognisable... the same as mine. Could there be any underhand motive for this, or am I paranoid?? What did you decide your next steps would be... if any? I received a reply to my 'dispute' letter when they sent me the copy of the application and you might like to read it on my thread below. I'd be interested to see if you received something similar.

 

Banker, appreciate your comments which are helpful to my case too. http://www.consumeractiongroup.co.uk/forum/other-institutions/173307-john-lewis-cca.html#post1888481. However, Guz's application does refer to bits and bobs 'overleaf' as does mine, ie paragraph under "Existing Account Cardholders", "Important - Use of your information" and again under the "Please sign (when you have read overleaf)". What is the relevance of this please?

[guzzleguts]

Hi MCL

Personaly, it hasnt got the prescribed terms on the sig doc, ive sent them a dipute letter and had a reply from cl finance sent them a get lost letter provided by one of the exellent people who have helped me on here.

 

They can say they have next weeks winning lottery numbers on the back but proving might be difficult, i think its a waiting game now.

 

Let me know if you need any more help and il post up who has helped me.

 

Thanks GG

[cashins]

In any event, they've got the Agreement part wrong, because the Heading for the Agreement area is not correct. Under Regulation 2(1) to the Consumer Credit (Agreements) Regulations 1983, for the document to be regarded as an Agreement it would need to have been headed (note the word Card is missing on your Application Form):

 

Well spotted BRW.

 

Don't want to confuse or intrude on this thread but quick question.

 

Not considered that aspect before, is that enough to invalidate an agreement in it's own right, or just more ammunition?

 

David

[guzzleguts]

Hi david

Your not intruding the more questons the more i learn.

Thanks

 

GG

[blind-as-a-bat]

Well spotted BRW.

 

Don't want to confuse or intrude on this thread but quick question.

 

Not considered that aspect before, is that enough to invalidate an agreement in it's own right, or just more ammunition?

 

David

 

it renders it unenforceable without a court order, but not unenforceable full stop.

[banker_rhymes_with]

Hello Misscynical!

 

As you have the same Application Form as Guz, this should be relevant to both:

 

Banker, appreciate your comments which are helpful to my case too. John Lewis CCA. However, Guz's application does refer to bits and bobs 'overleaf' as does mine, ie paragraph under "Existing Account Cardholders", "Important - Use of your information" and again under the "Please sign (when you have read overleaf)". What is the relevance of this please?

 

I think it's vital to bear in mind that the Prescribed Terms are very important, because they tell you what the nasty Credit Card is going to cost you. Without them you could be Signing your life away for all you know!

 

Any Moneylender that hides these key Terms out of sight is to be regarded with DEEP suspicion. The Consumer Credit Act 1974 covered these very well via s127(3), making sure the bankers were suitably penalised if they tried to hide them elsewhere. This was later watered down in the Consumer Credit Act 2006, but that does not apply to an Agreement Signed in 2004, as the repeal of s127(3) in CCA 2006 was not retrospective.

 

In my opinion, putting them on the back page of an Application Form is very, very underhand. Particularly if there is no specific mention of them on the main Signature Page.

 

So, the first point is these copy Application Forms clearly do not show the Prescribed Terms anywhere that I can see, and make no effort to point out where they may live. The reference to Overleaf seems to be wholly concerned with Data use and Privacy.

 

Without an Original Copy of these Application Forms, it is anyone's guess what was on the rear Page.

 

If John Lewis Financial Services (JLFS) do not have the Original Application Forms, then it's likely what was on the back didn't suit them now for the purposes of Enforcing any alleged Agreement. They probably elected to Shred them to hide what was not there.

 

But going back to the issue of turning an Application Form into an Agreement...

 

Well spotted BRW.

 

Don't want to confuse or intrude on this thread but quick question.

 

Not considered that aspect before, is that enough to invalidate an agreement in it's own right, or just more ammunition?

 

I regret I don't know what effect this would have, but I'd think that at the very least a Court would need to decide if it can be Enforced. Indeed, just as blind-as-a-bat has suggested, probably Unenforceable without a Court Order.

 

But the fact that they have failed to use the correct Agreement Heading on the Application Form, is at the very least more ammunition in support of you being able to say this is just an Application Form and not something that should double as an Agreement.

 

In their headlong rush to get the Consumer to Sign up for their nasty Credit Card the Moneylender has rushed the paperwork, and has clearly dumped on any old Agreement Title it found handy. Getting people to Sign was their whole aim, don't forget, and they didn't want to go spoiling things by putting people off by revealing the TRUE COST via the Prescribed Terms! They were devious enough to hide them or omit them.

 

They wanted Guz and Misscynical to Sign up, so produced a pretty naff Application Form with an incorrect Title and with no sign of the Prescribed Terms anywhere that was obvious.

 

If they do have an Original Copy, and that has the Prescribed Terms on the back of it, then a Judge may overlook the incorrect Heading and the lack of the Prescribed Terms within the Signature Page...on the other hand, the Judge may well take a dim view of this Application Form and may agree that the Heading problem and the clear omission of the Prescribed Terms within the Signature Page are enough to convince them this is not an Agreement but a pre-Contractual Application Form.

 

If they do not have an Original Copy, then the likelihood of a Judge throwing this out should dramatically increase.

 

If they do have an Original Copy, and there are no Prescribed Terms on the back of it, then the Judge has to throw it out because of s127(3).

 

In summary, if JLFS have an Original Copy and they are sure it has the Prescribed Terms on the back of it, then they should not have an issue with sending you a Copy of your own Rear Page, and they should not have a problem letting you go and see it (perhaps via CPR 31.16 if before Court action, or via CPR 31.14 if they start Court Action).

 

Anything less, and you have to start wondering what they do have?

 

It's an instant victory for Guz and Misscynical if JLFS have the Original and it does not have the Prescribed Terms.

 

However, it's not necessarily an instant defeat if JLFS have the Original and it does have the Prescribed Terms, because the Heading issue and the fact that they have tucked these key Terms out of sight of the Signature Page may just tip the balance in your favour. But the likelihood of defeat in that case will rise, and you must both take that into consideration and to keep pushing to see what they do have because of that possibility.

 

I hope this helps.

 

Cheers,

BRW

Edited December 30, 2008 by banker_rhymes_with
Clarity

[cashins]

In their headlong rush to get the Consumer to Sign up for their nasty Credit Card the Moneylender has rushed the paperwork, and has clearly dumped any old Agreement Title it found handy. Getting people to Sign was their whole aim, don't forget, and they didn't want to go spoiling things by putting people off by revealing the TRUE COST via the Prescribed Terms! They were devious enough to hide them or omit them.

 

Agree. I do happen to know it was common practice in some companies for staff to collect competitors aplication forms and agreements so you have to wonder how much of the script was just 'lifted' in this way to create agreements that wouldn't scare the customer off.

 

David

 

PS Thanks for your answer to my question.

[banker_rhymes_with]

Hello David!

 

I do happen to know it was common practice in some companies for staff to collect competitors application forms and agreements so you have to wonder how much of the script was just 'lifted' in this way to create agreements that wouldn't scare the customer off.

 

That would explain why so many have used the same daft layout and the same blocks of text!

 

Indeed, I think it would confirm what many have suspected, that few bankers bothered to let a Lawyer anywhere near these Application Forms!

 

Which is why they are having such fun now trying to enforce them!

 

You can almost hear their Lawyers saying: did you really send these out like this?

 

(whilst thinking what nice fat fees they will get handling the resultant mess their dull greedy banking clients have created for themselves).

 

Cheers,

BRW

[guzzleguts]

HI BRW

Just found out that J lewis have sold the debt to CL FINANCE, can you believe it back in april, and to top it they havent sent a default notice or letter of assignment, can they do that?

 

Thanks GG

[cashins]

Just found out that J lewis have sold the debt to CL FINANCE, can you believe it back in april, and to top it they havent sent a default notice or letter of assignment, can they do that?

 

 

Errr....no, but in practice they do it and there is little effective recourse from the authorities.

 

CL are chasing you now?

 

David

[cashins]

Indeed, I think it would confirm what many have suspected, that few bankers bothered to let a Lawyer anywhere near these Application Forms!

 

Well, legal would get a say but risk assessment would say the chances of agreements being challenged at that time was negligible.

 

In big companies the future is for someone else to worry about.

 

David

[banker_rhymes_with]

Hello David!

 

Well, legal would get a say but risk assessment would say the chances of agreements being challenged at that time was negligible.

 

In big companies the future is for someone else to worry about.

 

...then along came CAG to spoil their whole party!

 

Cheers,

BRW

[guzzleguts]

Hi david

Yes had a letter before xmas, was a little shocked as no notice was given.

 

I sent CL a letter explaining JL havent complied with original request and no assignment was sent, and i would be complaining to the relevent authorities.

I received SAR reply from JL this morning everything was there exept notice of assignment and default notice but it doessay the debt was sold 9/4/08.

 

Shocked but after reading threads on here not supprised.

 

GG

[guzzleguts]

Help with cca?/GE money. (1 2)

guzzleguts

 

Would appreciate anyone looking at but espeacaily ccm brw or josie looking thanks GG

[guzzleguts]

I have received a claim form this morning regarding this account, would appreciate some help with toe POC, and please could this thread be moved to legal issues.

 

Thanks GG

[42man]

Hi GG....moving to legal forums, and if you could tell us what the POC's are that would be helpful (don't be specific with the numbers though)....it looks like the agreement is unenforceable anyway !!