Cca From Mint Is It Enforceable?

[ANDREAMOUR]

Had a mint card in 2005

got into financial difficulty in nov 08 and had to stop paying them.

I wrote and explained my situation and they have cancelled the card and referred me to a dept collection agency so i thought it may be worth cca ing them...

This is what they sent through.

 

Dont think its enforceable just looks like an application form as theres no apr, credit limit, company signature or t&cs but it does refer to details about the card set out overleaf..

 

They have sent me T&cs but these must have been knocked up after as they refer to my credit card number which wouldnt have been issued with this application form

 

 

 

 

 

 

Edited July 23, 2009 by ANDREAMOUR
spelling mistake

[cerberusalert]

It is an application form which does not contain any of the prescribed terms. The T&Cs they've sent have no relevance to it. Send them this;

 

Dear Sir or Madam,

 

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated ........, the contents of which are noted

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On ......... I requested that ........... supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ........... have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to .............., nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.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

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ............... become compliant with my request. As ................ are still not in compliance with my request I insist that the following takes place with immediate effect

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until ............. comply with my request from .date........... or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Yours,

Print name do not sign

[ANDREAMOUR]

Thought so.

Thanks Cerberusalert

[charlie*]

Re the Mint CCA above...

 

Thing is, my wife has a RBS Advanta Application (dated Nov 2000) it's legible enough with a glass and it's almost identical to this Mint CCA (Jan 2005).

 

On the same line as the Mint Declaration and Authorisation it states the following.... "I accept and agree to be bound by the general conditions applying to the card as set out separately and the details about the card as set out overleaf... etc "

 

This is where I am confused... some people say that four corners means one side others say both sides of the signature paper are within the 4 corners and where reference is made to 'overleaf' on the front page, then that could define enforceability or not depending on what is there... interest, term, level of credit, frequency of payment etc.

 

The wording above is identical too.

 

Also, copy of Credit Agreement set out in a 3 fold leaflet, both sides with Terms & Conditions ...RBS Advanta (later Mint of course)

 

If our good friend cerbarusalert is listening in, SHOULD I POST THIS ONE SEPARATELY FOR YOU TO GIVE IT THE ONCE OVER?

 

Thanks guys, sorry to intrude... seemed the best thing to do.

 

charlie*

Edited April 3, 2009 by charlie*

[cerberusalert]

Yes, start your own thread so we can have a look at it for you.

[ANDREAMOUR]

Hi charley.

I was worried about that too.

Be sure to pop back and check my progress and if you give me a link to yours i will do same. ( ;

[ANDREAMOUR]

Had this today

 

Edited June 11, 2009 by ANDREAMOUR
added 2nd part of letter

[alangee]

The final four pages of your "agreement" look as if they have just been put together by someone using MS Word. Do the pages have any reference numbers on the pages?

 

As far as I know, when you sign an application which is to be classed as an agreement, it would have to refer on the signature page to where the prescribed terms are. For instance, overleaf or on reference xyz in the following four pages. Not to refer back to an application for all the details the agreement needs - such as your signature.

 

Does the application refer to the following pages? The application also has a reference number at the side. If the following pages were part of the same document, they would have the same reference number.

 

Alan

[ANDREAMOUR]

Hi Alan

The t&c pages are as they sent them to me there was no reference number on them..

[alangee]

I would be very suspicious of that.

 

Alan

[ANDREAMOUR]

Thanks Alan I thought they was a bit dodgey.

 

Had this today

 

[ANDREAMOUR]

latest from triton

 

[ANDREAMOUR]

sent triton this very good template!

 

http://www.consumerforums.com/resour...-is-in-dispute

[ANDREAMOUR]

latest from mint

 

[cerberusalert]

Send AIC the letter in post #13.

[ANDREAMOUR]

Just found this tucked away in my draw

 

 

 

Think it could be dodgey as they have stated 17 days from the date and not actually specified a date

[supasnooper]

Don't suppose you have the envelope it came in do you ?

[cerberusalert]

The default is not in the correct format and it doesn't include all the required terms see attached pdf.

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf

[ANDREAMOUR]

Thanks cerberusalert

When you say format what do you mean?

Sorry if its a sill question.

I dont have the envelope i didnt realise i had the default till i was clearing out some old bank staements.

[cerberusalert]

Read the pdf file it says how a DN must be formatted and worded.