Credit card and mailer forms the agreement?

[underdog13]

I've received a response from a creditor to my s78 request which basically states that the card mailer the credit card is attached to forms the agreement and that when I sign the card, I have signed up to the agreement. I have noticed on other threads that this argument is becoming increasingly popular with creds.

 

It sounds utterly ludicrous to me, but I would be interested to hear what other caggers think.

 

Could any legal bods proffer a suitable response we could use to refute their assertion?

[vjohn82]

Well I sent this back to Cabot when I received a "credit agreement" that was basically an application form:

 

I have looked over the information provided and put forward that under the terms of s.77/78 of the Consumer Credit Act 1974 you have not met your obligations. The document provided, for the purposes of legal collection, is an application form for credit and not an executed credit agreement. In order to collect this debt you need to be in possession of an executed credit agreement. An executed credit agreement must meet s.61 of the Consumer Credit Act 1974 which sets out the prescribed terms, which are the minimum provisions to be contained within a single document; the document you have provided does not meet this stipulation.

 

The prescribed terms for enforceability under s.127 (3) are given in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983:

 

- 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—

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) 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.

 

- A term stating the rate of any interest on the credit to be provided under the agreement

 

- A term stating the amount of the credit

 

 

The above terms are inflexible and are backed up by case law;

 

i. McGinn v Grangewood Securities Ltd

Court of Appeal 23 April 2002 3 All ER 145; 105 Solicitors' Journal 588

 

ii. Wilson and others v Secretary of State for Trade and Industry (at Court of Appeal, known as Wilson v First County Trust) House of Lords 10 July 2003

 

iii. London North Securities -v- Meadows (Supreme Court of Judicature Court of Appeal) 14 June 2005Dimond -v- Lovell ([2002] 1 AC 384 )

 

iv. Wilson and another v Hurstanger Ltd (In The Supreme Court Of Judicature Court Of Appeal (Civil Division) 4 April 2007)

 

I would welcome the opportunity to present this defence to the courts should you take the action you have mentioned in your letters thus far.

 

The statements provided do not include how the initial balance has been calculated. I contend that the balance has been falsely calculated in order for your company to reap maximum financial benefit from an account that was never properly executed. Unless I receive an appropriate response I will be forced to make a complaint to the FSA under s.2 of The Fraud Act 2006 for attempting to obtain money by false representation unless you have other documentation to support your claims to this alleged debt.

 

Put simply, I want this debt to be purged from my credit file as it is vexatious and unsubstantiated. You have not provided adequate proof of ownership, enforceability or properly calculated balance. Under section 10. 3 (a) of the Data Protection Act I can make a complaint regarding personal information that you hold about me.

 

Under part 2 section 10. 3 (a) of the Data Protection Act 1998 ch. 29 it states:

“The data controller must within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice —

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.”

This means that within 21 days you must give me your reasoning for continuing to process data which is contrary to the Act. The data you have recorded is incorrect and damaging to my credit profile which may prohibit my ability to obtain further credit services.

I trust you have the information at hand to respond to this letter. Please note failure to respond within 21 days will trigger an official complaint to the Information Commissioner with a claim for damages for the distress and inconvenience of bringing this matter to your attention. Should further action be required the Data Protection Act section 10.4 allows for a court to enforce your company to comply with this notice and should this action be deemed necessary I shall seek recompense as per section 13 (1) in which:

“An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.”

I trust I have set out my position clearly and that if I do not have an appropriate reply within 21 days I will be forced to make complaints to the relevant authorities as outlined above.

 

Hope you find some use for it!

[underdog13]

I certainly will find some use for it, Vjohn - that's a scorcher!

 

What response did you get from Cabot, if you don't mind me asking?

[Viscount Stair]

It seems to be the case that current terms set out in the mailer are sufficient for the purposes of section 85, but not for the purposes of section 78 and certainly not for the purposes of sections 60, 61 and 127.

 

There is a distinction between regulations 7 and 8 in the Copy Documents Regs that supports this proposition.

[Viscount Stair]

They may also be "misinterpreting" section 66 of the Act.

 

66. Acceptance of credit-tokens.

— (1) The debtor shall not be liable under a credit-token agreement for use made of the credit-token by any person unless the debtor had previously accepted the credit-token, or the use constituted an acceptance of it by him.

(2) The debtor accepts a credit-token when— (a)

it is signed, or

 

(b)

a receipt for it is signed, or

 

©

it is first used,

 

 

either by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it.

 

That is a requirement over and above the requirements of sections 60 and 61, not in substitution for those requirements.

[vjohn82]

I certainly will find some use for it, Vjohn - that's a scorcher!

 

What response did you get from Cabot, if you don't mind me asking?

 

Still waiting for a response to be honest... but they are within my self imposed deadline so still waiting.

 

Will try to remember to let you know when I get a response!

[underdog13]

Thanks for those excellent points, Viscount Stair:)

[underdog13]

Please do let me know, VJohn - I'd love to see their response;)

[millymollymoo]

halifax have been using these card mailers in what they send out to be the purported credit agreement. I know because I have the mailer with the card still attached to it on account opening. It was my o/h who used his additional card mine is still attached. Still I was responsible for his I know:rolleyes:

[Rhia]

You are quite correct in that the card and new mailer is sufficient to cover S85. This is where a new updated card is issued with the mailer which has new T&C attached.

However, if they do not have a properly executed agreement which contains the prescribed terms etc in the first place - S85 will be irrelevant as it doesn't matter how many times they issue T&Cs - no agreement = unenforceable.

Edited August 12, 2009 by Rhia