Just Recieved A Signed Capital One Agreement

[sunflower99]

Dude- the prescribed terms MUST be on the same document as your signature, not on another document called Terms and Conditions.

Hi noomill! but i have hear that if the original signed page of document makes a reference to another page of alleged ts and cs it can be part of the same agreement

[Pinky69]

The Terms and Conditions are not the prescribed terms (interest rate, credit limit and repayment schedule) - and the prescribed terms must be on the same part of the "agreement" as your signature. I also bet you a pound to a penny that the Terms and Conditions are this year's - chancers!

[ScabHunter]

To be honest I've noticed more and more of this happening all the time. Because the prescribed terms need to be within the four corners of the document, but CAN be on the other side from the signature, we are seeing ever more "Cut 'n' Shut" application forms. Old terms and conditions are being photocopied, and claimed to be on the back of the old application form.

 

In most cases, there is no mention of "overleaf", which is tending to give the game away.

 

Just for interest, when did you take this Crap One card out? Is the original agreement still running, or has it been passed to a DCA?

 

SH

[noomill060]

dont worry sunflower, youre not the first to be perplexed by an application form.

 

An enforceable agreement, that is not.

 

 

Read the rest of post 22.

[sunflower99]

Dude- the prescribed terms MUST be on the same document as your signature, not on another document called Terms and Conditions.

 

Heres a bit of info-

 

 

s.127 Enforcement orders in cases of infringement

“(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).” The omitted prescribed term being the signature of the debtor.

The Applicant draws the attention of the Court to Schedule 3 section 11 of the CCA 2006. Parliament has explicitly made it clear that S127(3-5) are not repealed for agreements entered into before 6th April 2007.

 

The document upon which they would rely upon to bring an enforcement action under s.61 of the Act does not contain the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482).

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - 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 and 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-

 

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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.

 

Where an agreement does not have the prescribed terms as stated above, it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

 

Wilson and FCT judgments

 

Starting with the Judgment of Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] EWCA Civ 633 COURT OF APPEAL, CIVIL DIVISION. In this case Penelope Wilson appealed with permission of Judge Hull QC from his decision, sitting in the Kingston upon Thames County Court at Epsom on 24 September 1999, refusing her application for a declaration that the credit agreement which she had entered with the defendant, First County Trust Ltd, on 22 January 1999 was void and unenforceable.

 

A key point at Para [26] in Sir Andrew Morritt’s judgment is this;

 

“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

 

It is my contention that this is the case here with the agreements with the claimant, I also note that the House of Lords did not reject this idea and reaffirmed much of Sir Andrew Morritt’s judgment including this part of the ruling.

 

In addition, It is clear that Parliament considered the fact that where a creditor failed to comply with the requirements of ss 60 and 61 of the Consumer Credit Act 1974 they would stand to lose any monies loaned and that penalty was correct.

 

The Consumer Credit Act is a protective Act, implemented to give consumers a level of protection and set out minimum requirements for contracts between creditors and debtors, it does not say that where a credit fails to comply with the law and the debt becomes unenforceable they can cause damage to the debtor by defacing their credit file, no court has also held this to be the case either and I am sure Parliament would have stated in the Act if it was to be the case that the creditor had any such rights when in non compliance.

 

38. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

 

39. I would also like to refer to a written comment, which I feel is extremely relevant, from Francis Bennion the draftsman of the Consumer Credit Act 1974 and a very well respected barrister who specializes in Consumer Law. On his own website he states;

 

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.

 

This quote can be seen at http://www.francisbennion.com

Hi Noonhill so according this the ts and cs should be attached to signed page in four corners,I have a similar issue with an MBNA cca.ThanKs for infomation,

Edited December 10, 2008 by sunflower99

[sunflower99]

To be honest I've noticed more and more of this happening all the time. Because the prescribed terms need to be within the four corners of the document, but CAN be on the other side from the signature, we are seeing ever more "Cut 'n' Shut" application forms. Old terms and conditions are being photocopied, and claimed to be on the back of the old application form.

 

In most cases, there is no mention of "overleaf", which is tending to give the game away.

 

Just for interest, when did you take this Crap One card out? Is the original agreement still running, or has it been passed to a DCA?

 

SH

Hi Scabhunter!

The account is still with crapial one though they have passed my account to their inhouse collection house Debitarse!but Debitarse is still capital one pretending to be another DCA! card was taken out in 2003

[sunflower99]

so looks like crapital one trying to get clever!and i cant help suspecting that that middle bit saying about overleaf terms has been inserted on my original application form and they are being a bit creative to put it politley!Zazen warrior has an identical application form to me but the middle of theirs is different and has a different layout !

[Gazza112]

Hi Sunflower

 

Just subscribing to this thread

[hellhasnofury]

Hey you best not be leaving me out either:D

 

Recent terms and conditions £12 fees, when did you take the card out?????

[The GodMother]

card was taken out in 2003.

 

I am also joining the thread.

[sunflower99]

Hi Gazza Helllhasnofury and godmother!

it was a bit of a blow they came up with this and i have beeen worrying all day about this and felt depressed but at least most people looking at this so far agree with me and do not think it is enforceable, It does not give any details of charges at all so not possible to date when the terms and conditions were from.Scabhunter thinks it is quite likely to be this years! and they were just slipped in.A bit strange that the form refers to term 23 overleaf and there is no term 23 on it.

[The GodMother]

According to a document that is beside me that is titled.

 

Important informationabout your Capital One credit card.

 

Now just to confuse us there are 2 sets of these documents with conditions on the front of both.

 

On set one section 23 says

 

23 Governing law. This agreement is governed by English law.

 

On set two section 23 says

 

23 Definitions. then lists the definitions used thing like we, us our etc.

 

For all to see i will put them up later but i am a little busy ATM.

[sunflower99]

According to a document that is beside me that is titled.

 

Important informationabout your Capital One credit card.

 

Now just to confuse us there are 2 sets of these documents with conditions on the front of both.

 

On set one section 23 says

 

23 Governing law. This agreement is governed by English law.

 

On set two section 23 says

 

23 Definitions. then lists the definitions used thing like we, us our etc.

 

For all to see i will put them up later but i am a little busy ATM.

Hi Godmother

so you hav a reference to this section 23! i can not seen any section 23 on my papers!just the phrase saying term 23 overleaf!Very strange.

[The GodMother]

i will post the details later.

[citizenB]

Hi noomill! but i have hear that if the original signed page of document makes a reference to another page of alleged ts and cs it can be part of the same agreement

 

Your document does reference "overleaf" However, if they were to take you to court, then the burden of proof would be on them. There is nothing to link those 2 pages to one another. There is also the question of the missing (section 23).

 

OH's account was opened in 2003 and the page they have supplied to him as being on the reverse is slightly different to yours and there is no section 23 either.

 

No prescribed terms on either page.

 

On the current t&cs supplied, section 23, has absolutely nothing to do with "use of information" what it applies to is the Governing law. ie This agreement is governed by English law. I see Godmother has 2 versions of section 23

 

£12.00 charges werent applicable until May 2006 so that in itself proves the t&cs they have provided couldnt have been on the reverse or anywhere else of your document and are probably current.

[cashins]

Blue Peter is alive and well then!!

 

If it was a second hand car, it would be what is know as a 'cut & shut', ie a complete vehicle made out of bits of other cars.

 

David

[sunflower99]

Hi CitasenB!

Thanks for getting back to me so soon about this thread!Thanks for resssuring me that you consider it unenforceable!As you say your OH card taken out in 2003 has a different paper with slightly different ts and The only thing is though you say it has no prescribed terms i did notice some sort of table with percenatages and interest rates on second paper which i was wondering if it was prescribed terms even if is from a completly different document! but as you say nothing to properly connect pages together!Another thing i notice though that Crapital one has cleverly made two faint lines go through ts and cs on second page in same place as the original signed application form trying to make people suspect it is on back of signed application form !though it is not im sure!

[sunflower99]

Blue Peter is alive and well then!!

 

If it was a second hand car, it would be what is know as a 'cut & shut', ie a complete vehicle made out of bits of other cars.

 

David

Hi David!

Thanks for confirmation that this CCA is unenforceable!

[The GodMother]

Your document does reference "overleaf" However, if they were to take you to court, then the burden of proof would be on them. There is nothing to link those 2 pages to one another. There is also the question of the missing (section 23).

 

OH's account was opened in 2003 and the page they have supplied to him as being on the reverse is slightly different to yours and there is no section 23 either.

 

No prescribed terms on either page.

 

On the current t&cs supplied, section 23, has absolutely nothing to do with "use of information" what it applies to is the Governing law. ie This agreement is governed by English law. I see Godmother has 2 versions of section 23

 

£12.00 charges werent applicable until May 2006 so that in itself proves the t&cs they have provided couldnt have been on the reverse or anywhere else of your document and are probably current.

 

 

the docs i have dont say anything about charges.

 

Sorry i will try and post up what i have tomorrow.

[sunflower99]

|Hi Godmother1 yes it will be interesting to see what you got from crapital one,

[The GodMother]

set 1 A

 

[The GodMother]

set 1b

 

[The GodMother]

set 2a

 

[The GodMother]

set 2b

 

[The GodMother]

rite thats both sets.

 

Any help to you?