Discussion on enforceability of agreements

[cappuccino]

Hi Steven, could you please have a look at my egg loan agreement, would I be right in saying that because it does not state the total amount repayable it is non enforceable, if this agreement is non enforceable what wording should I use in my letter?, they (ARC credit management) are now wanting payment in full as they have now supplied me with the documents I requested!!

 

 

http://i40.tinypic.com/ju9wl5.jpg

 

http://i39.tinypic.com/2n9vode.jpg

[charliebubs]

It's not legible, Cappuccino.

 

Is that just the scan, or is the copy they sent you illegible too?

 

If so, you want to go back to them quoting section 2(1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

Under this section the copy document/agreement they supply you with must be easily legible.

[cappuccino]

Hi Charlibubs, They are clear when I click on the link it lets me click to enlarge the image and I can scroll round the document, is there a better way to upload images??

Thanks Cappuccino

[Muffintop]

Hello all is this tesco Loan CCA enforcable.The blanked boxes are my address and signatures.Thanks

 

 

hi, what happened with this agreement, i have one identical which was made online alledgedly (was yours made online?) I have to say to a novice eye this one looks very legit as did mine what did anyone else say

[steven4064]

It's not very clear but, from what I can make out, it looks OK

[cappuccino]

[cappuccino]

[cappuccino]

Hi, Can anyone help with the above agreements??

Thanks Cappuccino

[steven4064]

It is not properly executed because it doesn't have the total cost of credit. However, it has you signature and the terms prescribed in schedule 6 of the Consumer Credit (Agreements) Regulations 1983 and is therefore enforceable under s65 of the CCA 1974.

[car2403]

It is not properly executed because it doesn't have the total cost of credit. However, it has you signature and the terms prescribed in schedule 6 of the Consumer Credit (Agreements) Regulations 1983 and is therefore enforceable under s65 of the CCA 1974.

 

I think I have to disagree - it's unenforceable under s.127(3) as it doesn't contain the prescribed term of rate of interest.

 

Granted it does include the APR, but the APR is not the rate of interest applicable to the agreement, as the APR is a reflection of the cost of borrowing against other loans and includes fees and charges as a result. A true rate of interest would only show the rate of interest applicable, not including fees/charges for borrowing and the likes.

[cappuccino]

Hi Steven, so this agreement is fully enforcable and I can not dispute it??

 

Thanks

[cappuccino]

Hi car2403, so there is hope with this agreement???

[steven4064]

I think I have to disagree - it's unenforceable under s.127(3) as it doesn't contain the prescribed term of rate of interest.

 

Granted it does include the APR, but the APR is not the rate of interest applicable to the agreement, as the APR is a reflection of the cost of borrowing against other loans and includes fees and charges as a result. A true rate of interest would only show the rate of interest applicable, not including fees/charges for borrowing and the likes.

For a fixed-sum loan, the rate of interest is not a prescribed term in schedule 6 (precribed terms relating to s127) unless the agreement falls within one of the exceptions is para 9 of schedule 1, which this one does not.

 

So, cappuccino, I don't think you will get anywhere challenging this agreement - MHO

[charliebubs]

Please could Steven or someone have a look at my thread........

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/183817-help-illegible-copy-cca.html

 

Any help would be great. Thanks

[Muffintop]

MADE A COMPLAINT TO TRADING STANDARDS RE NON COMPLIANCE OF SENDING MY CCA AND ONGOING HARASSMENT FROM MBNA AND BC.

BELOW IS THERE REPLY WHICH THEY ARE INVESTIGATING. THOUGHT YOU MAY LIKE TO READ THEIR TAKE AND FIND ANY FAULTS IN THEIR REPLY

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND2.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND3.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND4.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND5.jpg

[steven4064]

Can't help ATM - going away for the week.

[car2403]

MADE A COMPLAINT TO TRADING STANDARDS RE NON COMPLIANCE OF SENDING MY CCA AND ONGOING HARASSMENT FROM MBNA AND BC.

BELOW IS THERE REPLY WHICH THEY ARE INVESTIGATING. THOUGHT YOU MAY LIKE TO READ THEIR TAKE AND FIND ANY FAULTS IN THEIR REPLY

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND2.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND3.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND4.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/TRADING%20STANDARDS/TRADSTAND5.jpg

 

What do you think this is telling you, then? It simply sets out the TS/OFT view that we already know about on the forums, then states only a Court can tell you how it applies in your case.

 

What questions were you asking?

 

What documentation are they waiting for from you before making a decision?

[Muffintop]

The bit that sort of threw me was.

Certain details may be omitted from the original agreement. eg signature. but you must be in no doubt as to the true nature of your obligations.

 

how can a signatgure be missing? surely if I havent signed it then they cant prove its my agreement.....

 

then there is menton of Regulation 3(2) which states, there may be omitted from this true copy various pieces of info, such as details which are not required to be there by law, the signature box and date of signature for example.

in the OFT view the effect of regulation 3(2) is that the creditor is only obliged to send you a generic copy of the agreement you have signed up to. They are not obliged to make an actual photocopy of the document itself.

 

this again is suggesting that it doesnt have to be signed and I dont have to have an exact copy of what i alledgedly signed.. doesnt it?

This is what has worried me as it goes against what I believed.

 

the docs they were awaiting from me to persue my complaint was the log of phone calls received from mbna and bc and also letters requesting my cca that I ahve sent and their replys

Edited February 22, 2009 by Muffintop
addition

[Missy06]

Can any of the experts on the thread please confirm if I'm correct on the following:

 

1) In issuing the CCA letter, the aim is to DELAY PAYING OFF AN ACCOUNT IN ONES OWN TIME;

 

2) Although one delays paying off the account, defaults maybe lawfully issued on ones credit file and DCAs may still chase one for the debt.

 

3) In issuing the CCA letter, an individual CAN'T AVOID PAYING OFF THE RELATED DEBT; no matter when, the debt has to be paid eventually.

 

4) If one has already received a refund of charges for an account, the account can still be said to be in dispute if the bank can't find the CCA.

 

5) If a default has already been registered on an account, one can pay back as and when wants to on the account; afterall, the damage has been done. Or alternatively, one can just make an arrangement to make token amounts of say £10 p/m. Afterall, one still has to clear the debt?!?

 

6) If a default hasn't been registered, isn't it best to maintain the fact that the account is in dispute and just arrange with the creditor to make token amounts of say £10 p/m?!? Just to save ruining one credit file.

 

7) If the creditor later turns up with a CCA, the individual will owe not only the previous balance, but also any accrued interest on the previous balance which they ask for.

 

Thx in advance!

[car2403]

The bit that sort of threw me was.

Certain details may be omitted from the original agreement. eg signature. but you must be in no doubt as to the true nature of your obligations.

 

how can a signatgure be missing? surely if I havent signed it then they cant prove its my agreement.....

 

then there is menton of Regulation 3(2) which states, there may be omitted from this true copy various pieces of info, such as details which are not required to be there by law, the signature box and date of signature for example.

in the OFT view the effect of regulation 3(2) is that the creditor is only obliged to send you a generic copy of the agreement you have signed up to. They are not obliged to make an actual photocopy of the document itself.

 

this again is suggesting that it doesnt have to be signed and I dont have to have an exact copy of what i alledgedly signed.. doesnt it?

This is what has worried me as it goes against what I believed.

 

the docs they were awaiting from me to persue my complaint was the log of phone calls received from mbna and bc and also letters requesting my cca that I ahve sent and their replys

 

What they've said in relation to your CCA request is correct - enforcement of that agreement is a totally different kettle of fish and one that the TS/OFT/FOS won't comment on as only a Court can enforce an agreement.

 

Post April 2007 agreements can be enforced without a signature

[car2403]

...

 

Can any of the experts on the thread please confirm if I'm correct on the following:

 

1) In issuing the CCA letter, the aim is to DELAY PAYING OFF AN ACCOUNT IN ONES OWN TIME;

No - the request is designed to provide you with a copy of the agreement so you are aware of your obligations to pay, not to avoid those obligations

 

2) Although one delays paying off the account, defaults maybe lawfully issued on ones credit file and DCAs may still chase one for the debt.

It depends on what you mean by lawfully - under the DPA, the default should be accurate. Without a CCA it can't be accurate, so would be unlawful under the DPA.

 

3) In issuing the CCA letter, an individual CAN'T AVOID PAYING OFF THE RELATED DEBT; no matter when, the debt has to be paid eventually.

The existance of a CCA has no bearing on the outstanding obligation to repay the debt - it just can't be enforced against you without a CCA

 

4) If one has already received a refund of charges for an account, the account can still be said to be in dispute if the bank can't find the CCA.

You can dispute the enforceability of the remaining debt if there is no enforceable agreement, yes.

 

5) If a default has already been registered on an account, one can pay back as and when wants to on the account; afterall, the damage has been done. Or alternatively, one can just make an arrangement to make token amounts of say £10 p/m. Afterall, one still has to clear the debt?!?

Unlikely. More likely they will sell the debt to a DCA who will pester you until you make payments.

 

6) If a default hasn't been registered, isn't it best to maintain the fact that the account is in dispute and just arrange with the creditor to make token amounts of say £10 p/m?!? Just to save ruining one credit file.

Saying the account is in dispute won't stop them registering a default against you, so no.

 

7) If the creditor later turns up with a CCA, the individual will owe not only the previous balance, but also any accrued interest on the previous balance which they ask for.

Under CCA 1974, yes. There is some remit for the Court to punish creditors that don't comply with requests for information - such as providing statements, for example - (which a CCA request should have) under the 2006 Act, however.

 

Thx in advance!

[charliebubs]

Car2403 - can you please have a look at my thread. You seem very knowledgable and I'd welcome your thoughts. Thanks so much

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/183817-help-illegible-copy-cca.html

[Muffintop]

What they've said in relation to your CCA request is correct - enforcement of that agreement is a totally different kettle of fish and one that the TS/OFT/FOS won't comment on as only a Court can enforce an agreement.

 

Post April 2007 agreements can be enforced without a signature

ah Thanks Car, so enforcement in court is the key issue. so Trading Standards arnt really going to help me then...

[car2403]

ah Thanks Car, so enforcement in court is the key issue. so Trading Standards arnt really going to help me then...

 

They can't make a decision that only a Court can, no. Nor will they try to, I think?

[deborah lillis]

Hi Steven4064 and Pompeyfaith

I have a credit card with Halifax Card Services. I sent the agreement to be checked by the usual loan sharks out there and it came back that there were a number of areas on the agreement which were unenforceable. As such a firm of solicitors wants to take Halifax on under a CFE arrangement (although the document looks dubious to me and I could end up paying out a lot of money if I were to lose). Also the solicitors want me to take up an insurance policy to cover legal costs, and they say it wont cost me a penny. I have written to halifax to tell them that I think the agreement is unenforceable and asked for a copy of my original agreement. They said they would not provide me a signed copy of my agreement but supplied me with their version of the agreement. I took the card out in October 06. I noticed on the agreement they have provided - that it is not the same as the copy I have.

Is this card enforceable and what would you do next?