Discussion on enforceability of agreements

[shakespeare62]

this document is improperly exectued and not in compliance with S61(1)© CCA, the reasons?

 

Look at clause 1.5 (B)

 

where are the exceptions stated? clause 2,.4 . 3.5 and 3.6? they aint there so all the terms were not easily legible when the agreement was signed

 

 

also one has to question what are these terms? are they a term which says you do not have to pay on a day with a Y in it? could be. since its not stated then we just dont know

 

oh also, since its in relation to a prescribed term, they could be in trouble here too

 

 

Another thing, there is nothing linking the alleged back page scan to the front page e.g. no reference identifying it as a 2nd page of that document - it could be from anywhere. Also the back page (bottom) states virgin products whilst the front states mbna.

Edited January 14, 2009 by shakespeare62
edited typos

[toxicdebt]

Mine also has these terms missing (see section 1.4b in my thread link below).

 

Having blown my copies up I do believe that the back is actually the back of the front (not two separate docs) but does the above missing terms make it unenforceable or even improperly executed?

 

My thread (links in post 26)...

http://www.consumeractiongroup.co.uk/forum/mbna/163837-toxic-mbna-2.html#post1919033

[joneseyblod]

Great thread steven4064!

 

I came across this from militantconsumers thread.

 

Under the s18 multiple agreements post you did mention about top up loans having seperate categories (restricted use to repay existing amount and unrestricted use the cash) with or without the ppi being there. However you only mention this in relation to secured loans and mortgages.

 

I note in Francis Bennions paper he does use that example but I think that from elizabeth1's original post on the multiple agreements thread itself, that this top ups being multiple agreements argument can also be applied to unsecured lending where a loan has been refinanced through the same lender and this is not properly documented.

 

Any thoughts would be much appreciated.

[citizenB]

Thanks for this thread, Steven. It is nice and tidy with all the relevant information in one place.

[steven4064]

jonesey

 

The CCA 1974 mentions a whole load of categories in ss 8-15:

 

regulated, unregulated, fixed-sum, rolling-credit, restricted-use, unrestricted-use, credit-token, debtor-creditor, debtor-creditor-supplies, consumer-credit, personal-credit

 

Any agreement that falls into more than one of these categories is a multiple agreement.

 

In principle that is all agreements eg a 'normal' loan is consumer-credit fixed-sum unrestricted-use. Bennion makes it clear that the requirments of the CCA 1974 must be addressed for each category.

 

In practice, where this matters is where an agreement has two bits that fall into two different sets of categories. THe 2 (or more) bits must be treated as sperate agreements. THat means at the very least that the prescribed terms for each bit must be there.

[joneseyblod]

Ok thanks for that

[DannysDebtBeDamned!]

Hello to everyone who has contributed to this forum and thank you for taking the time out to help others - it is greatly appreciated.

 

Below is a copy of my Egg Credit Card Agreement. Can someone please tell me if it is enforceable or not.

 

Further queries/relevant information:

(1) also enclosed was a printout from the internet off the CC terms and condtions, which looks to be from their website circa 2004 by the dates mentioned. This is a seperate doc entirely and has no signatures or any of my info.

(2) On page two there is a tickbox 'for the return of any supporting information sent to Egg'. This is ticked. I am about 90% certain I don't remember sending them any supporting info, and so wouldn't have ticked this box, also the tick is not in my style of writing (sounds silly but my ticks are large and sloppy not small and prescise) and there are marks (are they just folds?) on both docs...has it been doctored, and if so what can I do?

(3) How do I work out the APR / Interst bit, or would anyone help me?

(4) Thanks for looking.

 

PAGE 1 LINK: Image of EGG CCA PAGE 1 - Photobucket - Video and Image Hosting

 

PAGE 1 IMAGE:

 

PAGE 2 LINK: Image of EGG CCA PAGE 2 - Photobucket - Video and Image Hosting

 

PAGE 2 IMAGE:

[steven4064]

Hi Danny

 

It is a standard Egg credit card agreement which is unenforceable because it does not have the prescribed term giving you your credit limit - it has an 'agreed limit' which is meaningless in terms of the CCA 1974.

[DannysDebtBeDamned!]

Crikey....thank you ever so much for that Steven!

 

Just a couple of question if i may...

 

(1) So it's just a simple as sending them a letter telling them this information, and stopping any payments to them? Is there a way round this for them, or is it a clear cut unenforceable agreement?

(2) I know its immoral so I wont be doing it, but what is to stop people who find they have an unenforceable agreement just maxing out their card/transfering another balance over and then saying I'm not paying...what have the banks said about this.

 

Thanks again mate, I fully intend to make a contribution to the site if this comes off.

 

Regards

 

Danny

[DannysDebtBeDamned!]

Oh, and PPS do I stand any chance of getting back any monies previously paid to Egg, or am I overly optimistic? Thanks.

[steven4064]

I would write in the first instance telling them that they don't have an enforceable agreement and why.

 

You will want to say that the prescribed terms are in schedule 6 of the Consumer Credit (Agreements) Regulations 1983 and that the Consumer Credit Act 1974 allows no deviation from them. Their agreement does not have the term "stating the credit limit or the manner in which it will be determined or that there is no credit limit." required for a running account credit agreement. It is therefore unenforceable by virtue of s127(3) of the CCA 1974.

 

You could make them a full and final offer as a gesture of goodwill and without prejudice of between 2p and 3p in the pound on the balance, which is what they would get if they sold the alleged debt.

[tomas123]

Hi,

 

I am new here and think it is great how friendly and helpful everyone is! I am querying 5 cards and am trying to learn as much about the process as possible as I am very nervous about going to a company to do this on my behalf and have to part with so much cash.

 

I too have an Egg card as does my husband. On both our agreement which is available for us to read online it states under 'credit limit' -

'We will set and tell you the Credit Limit from time to time.' We processed the whole application on line and ticked the relevant box for our signature.

 

Is it worth pursuing this with egg as unenforceable? I have sent off the template letters requesting a copy of agreements for the other cards to the relevant companies so am waiting their response.

 

Your advice would be gratefully appreciated.

[tomas123]

Hi,

 

I forgot to add that my husband egg card was taken out prior to april 07 but mine was taken out oct 07. Would that make a difference for me?

 

Thank-you

[steven4064]

These ar online applications and Egg seem to get those right. I am pretty sure that both of these will be enforceable. Ticked box counts as signature post 2004

[DannysDebtBeDamned!]

Thank you for your earlier replies Steven. A final question if i may. I currently owe £2,500 on the Egg card (the one with the unenforceable agreement) but the credit limit is £8,000. Is there anything to stop me transfering debt from my other credit card (Virgin £4000) to Egg, and then telling them it is unenforceable?

 

I acumulated my debts through living cost whilst having two years off to recover from a head injury as opposed to being a wild spender, and so feel 'less guilty' than if I had simply frittered it away.

 

Any further advice is welcome, and greatfully received.

[steven4064]

Apart from the moral issue, you mean?

[Muffintop]

These ar online applications and Egg seem to get those right. I am pretty sure that both of these will be enforceable. Ticked box counts as signature post 2004

Steven does this go for all online apps post 2004 that if there is a tick in the box then that surfices? have a tesco one that not posted up yet.

[steven4064]

Steven does this go for all online apps post 2004 that if there is a tick in the box then that surfices?

Yes - its covered by the Consumer Credit (Electronic Communications) Order 2004

[tomas123]

Thank-you for your advice.

 

Regards,

[pt2537]

a point to note with electronic agreements

 

firstly,

 

they would need to show that you did indeed put the tick in the box, they normally document the IP address, and email address used in the application , otherwise anyone could simply claim that you ticked the box and that was that.

 

secondly and most importantly, with most online agreements, there is a blurring of the two agreements

 

what i mean by this is, when you apply online, you fill in the form etc, so that is the agreement you are sending them. but is it also the agreement they are obliged to send you under s62 or 63? no it cant be can it so they need to also show you were supplied a copy as well

[DannysDebtBeDamned!]

HI Steve, have just donated to the site - as a way saying thank you for all your advice. By your last statement am I to take it that what I said is do able, but just not cricket so to speak?

[Muffintop]

Steven would they have to provide you with copy of your agreement following your application online via post? in other words still supply valid cca? also how would they proove who would have put the tick in the box if more than one person in the house?

[photoman]

HI Steve, have just donated to the site - as a way saying thank you for all your advice. By your last statement am I to take it that what I said is do able, but just not cricket so to speak?

 

It's not just "not cricket" so to speak, it could also be construed as fraudulent behaviour, which carries some very serious legal consequences.

 

CAG's objective is to help with people with debt control and management, and also empowering people to stand up for their rights, getting wrongfully applied charges, debts, defaults etc refunded or corrected.

CAG is not about encouraging people to avoid paying their genuine debts, as this could then be construed as conspiracy to defraud, with similar serious legal consequences. So all the membership and team here are are very careful to avoid encouraging or getting involved in such practices.

 

Your proposed plan of action is something that CAG and it's membership frown upon, and will not encourage, condone or help anyone with.

If you've borrowed the money (regardless of the circumstances why you did), and the contract was fair and legal, then it is something you really owe ought to repay.

Trying to take advantage of a loophole, by switching this to and obtaining the services of another card provider, with the deliberate intention of then making a gain is a fraudulent act (which I believe would come under sec 11 of the 2006 act).

If on the other hand your debt contains or consists of some genuinely unfair charges, then there is nothing stopping you contesting and applying for a refund of those.

 

PM

[steven4064]

Sorry I didn't get to answer your question but my answer would have been nowhere near as good as Photoman's (although essentially the same)

[toxicdebt]

Hi Steven

 

Would a online egg agreement with a ticked box opened in the 90's automatically be enforceable?