Terms not embodied = unenforceable CCA?

[themajor]

Ok I could do with a bit of help here pls. I've been getting quite confident and familiar with the CCA 1974 now, mainly beacuse of this site and have sorted my debts out a lot. When I get a problem the answers on here.

 

There seems to be a big debate about whether terms that arent embodied are unenforceable or not, and what "embodied" actually means as opposed to "contains".

 

Ive read the four corners argument, but then read on here of a judge throwing that one out saying an agreement and its terms can be more than a page long. Also if the terms aren't embodied does it render just them unenforceable or the whole agreement?

 

The reason I ask is I'm filing a court claim against Cabot and the terms are on seperate pages but the term Ive defaulted on, the payment shedule is before the signature on page 1 (signature on page 2,dont know if reverse of side 1 or not).

 

Please look at my agreement and give feedback. It does refer to the terms and conditions but doesn't say where they can be found. So are they embodied? The term Ive breached is on page 1 anyway. Do I come under 1983 Agreement Regulations because my CCA's dated 30/04/05.

 

EGG CCA2 picture by season_review_stats - Photobucket

 

EGG CCA1 picture by season_review_stats - Photobucket

[42man]

Did you have a read of this - http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what.html

[themajor]

thanks 42 man. today they sent me terms and coditions that they printed of the net! my cca refers to term 23 in the terms and conditions, but the terms only go up to 16. They might have trouble with that in court!

 

does anyone know where I can get a copy of the orinal 1983 consumer credit agreements regulations? all i can find on google is 2004 ammended and i dont know whats been added/substituted etc. im under the 1983 regs.

[42man]

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

and section 78 for running credit

 

 

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 [F1 £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.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(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

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement

I think the earliest rules that applied are the 1993 Money Laundering Regulations which became effective for banks on 1 April 1994. These required the banks to have systems to keep records of all financial transactions for at least FIVE years after the last transaction. In addition, if a bank considered a debtor insolvent, then the records had to be kept for FIVE years after the start of the 'insolvency'. The Money Laundering Regulations weren’t enforced against the banks until the FSA came along in 2001 which levied heavy fines for failures. I wouldn't like to bet any money on HSBC (or any bank) having adequate records pre 2001. As was said, this might open a new can of worms. Who knows?

[42man]

Was this taken out online ?

[42man]

If it was all they would have to show would be a tick box saying that you had agreed to the terms and conditions.....

 

As The Consumer Credit Act 1974 (Electronic Communications) Order 2004 came into force in December 2004 any online agreements entered into prior to this date still need a signed executed credit agreement.

Electronic signatures weren't considered valid until this date.

 

 

The Consumer Credit Act 1974 (Electronic Communications) Order 2004

[themajor]

no it wasnt taken out online. in my court claim im stating that the agreement is unenforceable because it doesnt have a total charge for credit, total amout payable, a statement about missing payments, and examples of early settlement amounts.

 

Im just not sure which of these regulations is relevant to the 1983 agreement regs and which to 2004 amendments. My agreement is jus.it before the 2004 regs came into force so is governed by the 1983 regs. it seems many people have trouble finding the original 1983 regs

 

do you think reasons for unenforceability will hold up in court?

[42man]

It all depends on how you present it and the judge on the day, but it sounds like you have a good case...

 

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

[themajor]

ok thanks, sorry to sound dumb but all the shedule 6 terms are on my cca except they dont state the amount of credit, they state "principle loan". I know its they same thing but do they actually have to state the exact word "amount of credit"?

 

also if they breach terms from say shedule 1 or 2, does that mean that the agreement is still enforceable? all the things ive picked up on that they've missed out are from schedules other than schedule 6. eg missing payments consequences and total charge for credit.