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why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement


pt2537
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.........an application form. I think I will send them a nice letter explaining the error of their ways.

 

An application form can form the basis of an enforceable agreement. All it needs is a reference to terms overleaf or attached.

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An application form can form the basis of an enforceable agreement. All it needs is a reference to terms overleaf or attached.

 

This application form only includes personal information about the applicant. DOB, home, employment etc. No financial information. The note at the bottom entitled "Credit Agreement Regulated By The Consumer Credit Act 1974" does refer to T&Cs overleaf. I do not think this is anywhere near an enforceable agreement. What do you think?

t33

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This application form only includes personal information about the applicant. DOB, home, employment etc. No financial information. The note at the bottom entitled "Credit Agreement Regulated By The Consumer Credit Act 1974" does refer to T&Cs overleaf. I do not think this is anywhere near an enforceable agreement. What do you think?

t33

 

Unenforceable Application form.... nothing more.

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Just thought I would post the reply letter

 

Dear sir/madam

 

Your Ref xxxxxxxxxxxx

 

I do not acknowledge any debt to your company

 

 

I refer to your letter dated dd/mm/yy, please confirm that the APPLICATION FORM that you have supplied is a signed, properly executed Consumer Credit Act Agreement.

 

I again remind you of your obligations under the Consumer Protection From Unfair Trading Regulations 2008 (specifically regulations 5 and 6) and the Office of Fair Trading Guidance on Debt Collection. I therefore request that you confirm whether you currently hold or have ever held a properly Executed Credit Agreement pertaining to the above account and if so please forward a copy to me by return.

 

If DCA DO NOT have a signed, properly executed Consumer Credit Act Agreement pertaining to myself, then I require written confirmation by return (CPUTR 2008 reg 5 and 6).

 

 

 

Yours faithfully

 

DO NOT SIGN only PRINT YOUR NAME

Edited by trevor33
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Trevor - did they send you a copy of the original T&C's alleged to be on the reverse of the application form, plus a copy of the T&C's as varied?

 

Elsa x

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An application form can form the basis of an enforceable agreement. All it needs is a reference to terms overleaf or attached.

 

Check out Carey.

 

Basa.... I think you're a tad confused.... and as such, your posts are misleading. An application is an application. An Agreement is an Agreement. The law pertaining to CCA 1974 is very clear as to what needs to be in a document to make it enforceable..... and Carey is irrelevant.

Edited by PriorityOne
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This application form only includes personal information about the applicant. DOB, home, employment etc. No financial information. The note at the bottom entitled "Credit Agreement Regulated By The Consumer Credit Act 1974" does refer to T&Cs overleaf. I do not think this is anywhere near an enforceable agreement. What do you think?

t33

 

They have shot themselves in the foot right from the beginning...'Credit Agreement Regulated By'....should be at the beginning in prominent heading NOT at the bottom...silly fools!!!

 

Look to Agreements Regs 1983 if your agreement was b4 31/05/2004 and it remains the same according to 2004 Agreement Regs afterwards.

 

rgds

 

m2ae

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Stick with it t33 you have only just begun to get them on the run...my experiences too...just stick with it and hold your nerve

 

rgds

 

m2ae

Thanks m2ae

I think we are getting somewhere with these DCAs now that we have more amunition to fire at them. Was reading another thread about charging DCAs a fee if they persist in hassleing you

I tried this with one DCA, it worked a treat.

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Trevor - did they send you a copy of the original T&C's alleged to be on the reverse of the application form, plus a copy of the T&C's as varied?

 

Elsa x

 

Exactly UE para 108 ISSUE 2 per Waksman in CAREY..read from paras 62 -124

 

BUT CAREY is about s78 ONLY...NOT PROOF OF EXECUTION...in t33's circumstances THEY have not even followed the format that Waksman uttered MUST be followed ..Credit agreement regulated by...AT THE TOP!!!!

 

BY definition DCA's exist ONLY 'cos the Original 'MASTERS' in their 'less THAN SOLOMAN's WISDOM ahem...make up your own minds!!!!!

 

rgds

 

m2ae

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From Carey discussing compliance with s61:

 

178. Ms Tolaney contends that on those assumed facts, the document signed by the debtor did indeed “contain” the Prescribed Terms. I agree for the following reasons:

(1) As described, it is hard to see the form and attached terms as anything other than one document. It is not suggested that there were separate page numbers on the terms attached but if there were, on these assumed facts, it would make no difference;

(2) The signature page itself makes clear that it is incomplete as a document and needs something else because it has no terms on it at all and makes specific reference to the terms “attached”; it only makes sense if something else goes with it; equally pp198-201 need something to go with them, not least a place for the applicant’s details and signature;

(3) The signature page refers to a credit agreement regulated by the Act and so makes clear that it is the first page of an agreement for which there must be other pages;

(4) The signature page and terms are presented to the debtor as a package;

(5) This would satisfy the notion that the Prescribed Terms can be identified within the “four corners of the agreement” – see Hurstanger v Wilson [2007] 1 WLR 2351 per Tuckey LJ at para. 11.

 

179. Indeed, on those assumed facts, Mr Uff accepted that there was a strong argument that the signature page was one document with, and thus contained, the terms.

 

All that is needed is a signature in a box on a page with Consumer Credit Act 1974 with the phrase T&Cs attached or on reverse (assuming the 'prescribed terms' are amongst those T&Cs) and I believe a judge will say it is compliant. You can all try to convince yourself otherwise, but judges are ruling that unless the debtor is significantly disadvantaged by misleading or poor documentation they will find for the creditors, e.g. Brandon:

 

In those circumstances, even if Mr Brandon' s point is a good one it seems to me to be not relevant in that he has not suffered any prejudice at all by virtue of that technical breach because, never mind within 14 days he did not, for example, within 21 days, which on my finding would clearly have been an appropriate period of time properly to comply with section 87.
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your right again Basa ...on THOSE ASSUMED facts..but this these are facts pertaining to t33's PARTICULAR circumstances...you need to learn how to distinguish between OBITER and RATIO...

 

rgds

 

m2ae

 

I appreciate the determination in Carey re s61 may be obiter, but as far as I know it is the only determination that sets out to explain what MAY be required to satisfy s61. As such it will be persuasive for many County Courts.

 

Like I said - many judges are now looking at the prejudice test.

 

Also from Teasdale v HSBC (Waksman again):

 

51.....Then, on 20 November Tesco issued an application to strike out or obtain summary judgement dismissing the claim. It contained detailed evidence as to precisely how the signed agreement would have looked at the time including the fact that the prescribed terms or information would have been on the reverse of the application form. What that evidence demonstrated was that there was simply no IEA case.

 

I just don't want anyone getting their hopes too high.

 

PS: have we even seen this application form?

Edited by basa48
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PS: have we even seen this application form?

I appreciate the debate on this, but it is a little worrying.

I do not think that seeing the Application form will make this any easier. As I posted earlier it does not include any finacial entries whatsoever. It only includes personal information and the box at the bottom headed "Credit Agreement Regulated by the Consumer Credit Act 1974" and it is dated 1999

T33

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PS: have we even seen this application form?

As I posted previously, the form only includes personal information, nothing finacial whatsoever. There is also the box at the bottom entitled "Credit Agreement Regulated by the Consumer Credit Act 1974". It is dated 1999. No T&Cs were supplied.

T33

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AND.... anyway t33 has received the heading at the bottom ...THAT would not even suffice for a s78 reconstituted copy for info purposes.... LET ALONE s61!!!...silly fools!!!

 

rgds

 

m2ae

 

Carey says they can reconstitute the contractual document be it an application or an agreement. As long as they refer to other paperwork (T&Cs which they then (re) produce with all the prescribed terms) on the front page then IMHO with some of the bizarre decisions coming out of various courts these days, the opposition can argue Carey and win. As far as I know its not laid down where the CCA notification can be. In fact most I've seen are in the signature box

I'm not an expert so check everything I tell you, however click me scales if I've been useful.

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From Carey discussing compliance with s61:

 

 

 

All that is needed is a signature in a box on a page with Consumer Credit Act 1974 with the phrase T&Cs attached or on reverse (assuming the 'prescribed terms' are amongst those T&Cs) and I believe a judge will say it is compliant. You can all try to convince yourself otherwise, but judges are ruling that unless the debtor is significantly disadvantaged by misleading or poor documentation they will find for the creditors, e.g. Brandon:

 

I agree

I'm not an expert so check everything I tell you, however click me scales if I've been useful.

Light travels faster than sound. This is why some people appear bright until you hear them speak.

 

There is no freemasonry like the freemasonry of Golf

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