cupcake68 Vs Mint Ec

[cupcake68]

Hi

 

Can someone please look at this CCA for me please. TC MINT pictures by cupcake62 - Photobucket

 

Am I correct in saying it is unenforceable?

 

If so could you please advise what to send back

 

Many thanks

 

Esile

[cupcake68]

Hi

 

Could someone please look at this cca for me? EC Mint pictures by cupcake62 - Photobucket

 

I am thinking it is enforceable but I am not sure.

 

Can I please also explain page 2 which is a copy of an application form is not mine, it has someone elses details on (!) Is this not breaking some kind of data protection rules? It has all the details of someone else born in 1949.

 

Could you please advise me of a reply?

 

Thanks

 

Esile:)

[cerberusalert]

I am thinking it is enforceable but I am not sure.

Unfortunately you're right.

Can I please also explain page 2 which is a copy of an application form is not mine, it has someone elses details on (!) Is this not breaking some kind of data protection rules? It has all the details of someone else born in 1949.

Make a complaint to the FSA & the Information Commissioner.

Could you please advise me of a reply?

Have you sent a SAR to see whether there are any unfair charges you can claim back & hopefully reduce the outstanding amount?

[cerberusalert]

Yes it's unenforceable, it's an application and those T&Cs are not linked to it.

[cerberusalert]

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

[cupcake68]

Hi Cerberusalert!

 

Thanks so much!

 

I'll send it to them tomorrow!

 

Esile

[cupcake68]

Hi Cerberusalert.

 

I must be learning then! I wasn't sure about there not being a signature but everything else looked ok.

 

I don't think there's much chance of claiming unfair charges. We have always paid on time etc so not many charges!

 

I'll have to accept this one!

 

Esile

 

Ps what do FSA and Information commissioner do?

[cerberusalert]

FSA What we do

 

Information Commissioner's Office - ICO

[cupcake68]

Cheers!

[cupcake68]

Hi

 

I'm sorry to appear dumb but I am just trying to get up to date with all my accounts and the letters I need to send and I am a little confused about this one! (It doesn't take much!)

 

The template letter says they haven't sent an agreement therefore I cannot decide whether it is enforceable but they have sent one which is unenforceable.

 

Is there another letter or should I be trying to amend this to my personal situation?

 

I'm sorry to appear dumb but a lot of what I read goes right over my head. I am really worried about saying the wrong thing and shooting myself in the foot!

 

Many thanks

Esile:confused:

[cupcake68]

Sorry but could someone please have a look at this for me.

 

I'm not sure what I should be sending!

 

Many thanks

 

Esile

[cerberusalert]

They haven't sent you an agreement....they sent an application.

[cupcake68]

Ah!

 

Ok!

 

I'll do as I'm told then! (and learn my lesson next time to trust you - sorry!)

 

Esile

[Exclus]

I have received exactly the same documentation as Esile back from Mint. Mine is also an application form, but on the bottom of it under the declaration section it does say '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 both as may be ammended from time to time'. These details, which they have provided, and say are overleaf, seem to have all the prescribed terms, as I think do yours Esile.

 

I was under the impression that if these prescribed terms were all part of the application form/agreement then it would make it enforcable. Perhaps someone can advise or put both of right on this, as obviously I hope that my account is unenforcable.

[cupcake68]

Morning Exclus

 

I have loked again after reading your post and I am pretty sure the terms and conditions I have are a copy of a leaflet folded into three which may well have been sent with the card or even the application form but they were not part of the same form.

 

I am new to this so not by any means an expert but I can't see from what I have how they could have been part of the main form.

 

Good luck!

 

Esile

[Exclus]

Looking at your third page of the nine you have posted I think that Mint are saying it is this that is on the back of your application form and therefore forms part of the agreement. Perhaps a member with more legal experience than us can advise whether this contains the exact prescribed terms that are vital.

 

However without seeing the original forms who knows whether the third page is on the back of your application form. I have been sent exactly the same as you (although dates are one year on from yours) and if the general census of opinion is that these copies they have sent us are unenforceable then I will send the same letter by 'cerberusalert' as you.

[cupcake68]

I did wonder about that page but from what I know (not much!) it doesn't have all the prescribed terms - your right to cancel etc.

 

If this page were proved to be on the back of the application form is that enough to get it enforced?

[Exclus]

Your right to cancel is on the front of the application form.

 

I think the problem is proving that there are no prescribed terms on the rear........obviously the only way is to ask for the form to be available for inspection at a local branch, which I do not think Mint will agree to.

[cupcake68]

Are all the prescribed terms on the front and that little bit on the back?

 

Doesn't seem like much text!

 

Esile

[chippo]

ive just recieved excactly the same from mint,my card was taken out in 1998, would be nice to have a little more advice on this, anyone please.

[cupcake68]

Yes please!

 

I had put my mind at rest on this one but now I'm starting to worry!!

 

Esile

Edited May 27, 2009 by cupcake68

[chippo]

could someone with knowledge of cca's take a look at Esile's please, thx

[chippo]

Looking at your third page of the nine you have posted I think that Mint are saying it is this that is on the back of your application form and therefore forms part of the agreement. Perhaps a member with more legal experience than us can advise whether this contains the exact prescribed terms that are vital.

 

However without seeing the original forms who knows whether the third page is on the back of your application form. I have been sent exactly the same as you (although dates are one year on from yours) and if the general census of opinion is that these copies they have sent us are unenforceable then I will send the same letter by 'cerberusalert' as you.

 

hi there,looking at what they sent me (exactly the same as Esile) if they scanned #2 and #3 at the same time there is no way #3 is on the reverse side of #2, i'm no expert on printers and scanners but the ink is very much lighter on #3 than on #2, it looks to me like #3 has been rolled off a production line and by the time mine was printed their machine was in desperate need of ink, i am 99% sure they are not connected.

[Exclus]

Looking carefully at what they have sent me I tend to agree with you. The copy seems much fainter than any of the other documentation sent.

[chippo]

hi exclus, its just a case of taking a chance really isnt it, ie,are the prescribed terms on the reverse of that application form or are they not, i'm siding with the latter.