Enforceable CCA?

[lee32uk]

Hi

I recently applied to RBS for a copy of my CCA.They replied back with the copies below.

One question i have as well is that my card changed from the standard classic card to a gold card after about 12 months or so, and the new card had a different account number.I also didnt sign any paperwork for the new updated gold card.Does this make any difference to the CCA request ?

 

Thanks for any help

 

Lee

 

 

 

 

[lee32uk]

[lee32uk]

[Desperate Daniella]

Hi,

 

Page 1 is the application form with no prescribed terms.

 

Where was the second page you have posted supposed to be? Was it on a separate piece of paper, or was it supposed to be on the back of the application?

 

The current terms and conditions are not the ones you were given when the account was opened. The figures are wrong.

 

You need an expert's advice here. The prescribed terms are not on the front of the application form, and they must be "within the four corners of the agreement" - can be overleaf, but cannot be on a separate leaflet.

 

Someone else with much more expertise will help you soon.

 

DD

[lee32uk]

Thanks for the reply daniella.

The pages sent to me are all one sided and are all on seperate pieces of paper.

I will wait for any other replies.

 

Thanks again

lee

[lee32uk]

can anyone else please help with the above?

 

thanks

lee

[42man]

I'd agree with Daniella....no prescribed terms on the signature page - when read in line with this -

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

They will of course continue to argue that what they have is enforceable....(of course they will !!!!)

You could send them this back...

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any prescribed terms means that a court would be prevented from enforcing it under s127(3)"

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request and I am therefore advising that the matter is now in dispute . Whilst the matter is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else.

 

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data

[lee32uk]

Many thanks for taking the time to reply 42man....much appreciated

I will send them the letter and see how i go on.

 

 

 

regards

Lee

[lee32uk]

Received a reply from RBS.Anyone any thoughts or ideas what my next move should be.

 

many thanks

Lee

 

 

 

 

 

[STBINNZ]

Hi Lee32uk

 

This seems a pretty standard, stock answer from RBoS. I got this from them too, although slightly different wording and not signed by the same person.

 

Do what I did - hit them with this: http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

Write, giving them 21 days to reply. I'll let you know what happens when I get a response. The deadline is next Friday - 20th.

 

Good luck.

[STBINNZ]

What makes me laugh is the wording on the "True Copy" Credit agreement:

 

"The Consumer Credit Act 1974 lays down certain requirements for your protection which should have been complied with then this agreement was made. If they were not, we can not enforce this agreement without a court order".

 

So their own credit agreement drops them in it !! and they still have the cheek to say they've done nothing wrong.. but won't supply the signed credit agreement.

[craigers]

The charges are incorrect for when you applied. You applied in 2003, I presume from the application form. The level of charges RBS have given you are for the post-2006 OFT ruling.

[lee32uk]

Thanks for the replies I will take a look at the link as well

 

 

regards

Lee

[alangee]

I notice that on the "agreement" they sent you the monthly charge for both purchases and advances is 1.313%, but the APR's are 16.9% and 18.7% respectively. How can that be?

 

Alan

[lee32uk]

Anyone else having problems with royal mail tracking site ? Sent a letter to RBS on 16th march, but it just says received at post office (we have your item)

I will have to give the post office a ring otherwise

 

 

thanks

[spartathisis]

dont expect Royal Mail to help, you pay extra and they still dont get a signature!

 

I too received an Application Form, put account in dispute and received a similar reply to you and then a request for payment.

 

Am making a complaint through their complaints procedure which im sure will go nowhere, but then I can complain to everyone else and say iv gone through the hoops.

[lee32uk]

Hi all

 

Received a default notice today from RBoS As far as i am concerned the account is still in dispute.

I am waiting for them to send me my SAR.They have until 12th May before their 40 days is up.

It should be interesting to see what they send, as i have 2 different account numbers (Original card replaced by a goldcard) but only remember signing one application.

 

Anyway back to the point in question, is the default notice they sent me correctly set out ?

 

thanks

 

[lee32uk]

anybody help with the above ?

 

cheers

 

Lee

[42man]

The default notice looks to be ok to be honest, and even if you did receive it on the 18th it would still give you 14 days i'm sorry to say !!

[lee32uk]

Thanks for the reply 42man.

 

I will just have to sit back now and wait for their next move.If they are relying on the above CCA then I should be ok.

 

 

cheers

 

Lee

[lee32uk]

I have recently received a Subject Access Request back from RBoS (Well part of it anyway ) as I am currently claiming back PPI, as well as questioning the CCA.

 

Anyway there is one thing that is nagging me, and I haven't been able to find out a definitive answer to it.

I originally applied for the Standard Mastercard in 2003.A few years down the line RBoS decided to issue me with a Goldcard (Which replaced the original card) without me asking for it.

The two cards had totally different 16 digit numbers.My credit card statements also showed the new card number.

 

So my question is, that if I have had two different cards with different account numbers, then should they have given me a new agreement to sign ?

 

The CCA in this thread relates to the Goldcard (2nd card) and the SAR that I sent to them was for the original Card.

They have sent me the same CCA for both cards, so how can one CCA relate to two cards ?

 

Is this a glaring error on their part ??

 

Hope I haven't made this too confusing

 

 

thanks

Lee

[lee32uk]

Anybody any thoughts on the above post ?

 

Thanks

[42man]

Well it could all boil down to what they put in the court papers Lee, I certainly wouldn't want them to know 'their' mistake !!! Did they supply ALL the information ?

[Notty]

Are they allowed to default you when you have not received the cca?

Edited May 18, 2009 by Notty

[lee32uk]

Thanks for the reply 42man

 

The SAR they sent me only contained about 2 statements, a copy of the CCA (Original card) and a list of a few telephone call records.I wrote back to them giving them a further 7 days to comply If they don't then I will go down the Court route.

 

The reason I wanted an answer on this particular question was in case they took me to Court.Obviously they would use the current Goldcard account number which dates from about 2005.Both of the CCA's they have sent are dated 2003 which relates to the original card

It also lacks any prescribed terms

cheers

Lee