ST1973 V Co-Operative (Smile bank)

[St1973]

HI,

 

Finally recieved a copy of my CCA from the Co-Operative/Smile today.

 

Original request was sent on the 4th Feb 09, with the subsequent reminders, as commonly produced on this board.

 

Yesterday this popped up.

 

I have also tasked a solicitor to review all my CCAs and take on any case whereby any findings will be posted on this bored as a thank you for your help.

 

The CCAs under review are;

 

Virgin/MBNA 2006

Cap1 - 1999

Egg - 1999

Smile/Co-Op 2001

Northern Rock - 2006

 

Any views on my smile CCA? I think its worthless!

 

SmileCCA.pdf

Edited April 30, 2009 by St1973

[42man]

I can't see any prescribed terms, and the writing in the agreement box is illegible !!

[St1973]

I believe they copy this off a micro fiche file, but even if it was signed..

 

No Prescribed Terms whatsover!!!

 

Surely unenforceable in Court!

[St1973]

Hi,

 

I have instructed a Solicitor to act on my behalf and this is what he has written to the Co-Operative regarding the above agreement

 

Your Debt Management Department has written to him requiring monies. In fact, Mr ******* had made a statutory request under the Consumer Credit Act 1974 to be supplied with a copy of the relevant executed agreement. The failure to provide this led to his complaint to you.

 

You have by letter dated 28th April 2009 provided to our client what is described as “copy of original credit agreement.”

 

What has been supplied is illegible. It does not appear to be a copy of the executed agreement, rather it appears to be a copy of an application form, but it is impossible to examine it.

 

Please forward to us a legible copy of the executed agreement.

 

We remind you that by virtue of Section 78(6) of the Act, any agreement remains unenforceable whilst there is a breach of the duty to provide. We would be grateful were you to inform your Debt Management Department of our request.

[St1973]

Good news, I have recieved the following attachement from my brief.

 

See attached.....

 

CoOp_Response.pdf

[St1973]

Co_operative have produced this response 10 weeks later with some Terms and conditions attached (seperate page)

 

Any views???

 

I am interested if anyone has any ideas how to respond. I havent informed the FOS as I did with Cap1 (They seemed to have cooled as a result). Co-Operative have also sent a Termination Notice (Attached also)

Coop Resp.pdf

Coop Term.pdf

[St1973]

Sorry,

 

Should have actually attached the Attachement...Whoops!

 

Cheers

coop.pdf

[42man]

Does the agreement contain notice of cancellation rights prescribed by Consumer Credit (Cancellation Notices And Copies Of Documents Regulations 1983) ? If not then it will be unenforceable...

[42man]

Also did you ever receive a default notice ? was it compliant ?

[St1973]

1. In Did recieve one and I do not know if it was compliant!

2. No it does not, neither in the 'Signed agrrement, nor in the attached Terms and Conditions

 

Does the arguement "must be stated within the four corners' still apply?

 

I could do with some advice on a response to the C-Operative if possible?

cheers

[St1973]

I am sending this letter to theCo_Operatve as a response.

 

Any comments?

 

Cheers

 

 

Dear Sir/Madam

This account remains in dispute.

 

In May 2009 my solicitor wrote to you requesting that you supply me a true copy of the executed credit agreement for this account along with permission to supply such documentation to him.

In response to this request they were supplied a mere ‘application form’, signed and NOT containing the prescribed terms, which did not comply with the requirements of the Consumer Credit Act 1974.

In June 2009, you were informed of this by my solicitor who requested that you comply with the act and not pursue the alleged debt. On 7th September you finally responded claiming that a separate sheet, containing the prescribed terms fulfilled your end of the agreement.

 

The documents sent purporting to be a credit agreement does not contain any of the prescribed terms, within the four corners of the signed agreement as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the "1974 Act" sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553

 

The prescribed terms referred to 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.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (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 situation 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.

 

Further more, since the prescribed terms referred to above do not appear within the ‘Four Corners’ of the agreement you have supplied, the agreement is rendered totally unenforceable, as the prescribed terms must be contained within the signed agreement and not a separate document, case law confirms this opinion

 

I refer you to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

Therefore the prescribed terms cannot be contained within a separate document outside of the signed agreement.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, 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

 

As it stands, the document supplied you is not a valid credit agreement nor is it enforceable by any court

 

What I Require

 

Firstly, I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards, the Financial ombudsman service and the Office of Fair Trading. In addition I may report your conduct to the Solicitors Regulation Authority and the Law Society. The financial Ombudsman Service has already been informed of this dispute.

 

I would like to draw your attention to the fact you do not hold a signed copy of a credit agreement containing the prescribed terms. Therefore the fact that you do not hold such document means that you cannot obtain an enforcement order in court. The case of Wilson-v-FCT sets this out as previously referred to above

 

However should you believe that you have grounds to enforce this agreement, please provide me with a signed copy of the credit agreement that you would consider relying upon? Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

The agreement you have supplied as it stands is unenforceable, should you be unable to produce a compliant agreement it would be in everyone’s interest to consider the matter closed and for you to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages. I respectfully request a response to this letter in 14 days

 

I trust this out lines the situation

Regards

[St1973]

Interesting point, apparently only agreements AFTER 2005 are covered by the 'four corners' ruling, whereby all prescribed terms must be on one sheet.

 

Comments?

[ihatemybank]

Hi St1973.

 

I am having similar problems with the Frown (Smile) myslef. I am in a similar position to you.

 

They originally sent me a letter saying that they do not hold a copy of the agreement. Then when I stopped paying the account they proceeded to send me a blank copy of the document that you have scanned in. A silly question but was your document a copy of the original?

 

Did they send you a default notice? I was sent a default notice but they did not allow 14 days + 2 for postage. Perhaps this is something that you can pull them up on. My claim is now with one of the No Win No Fee CCA Claim firms now.

 

Good luck mate.

[St1973]

Can anyone tell me is it up to SMILE to prove it is the same document?

 

It seems obvious that it is not, and is TWO seperate documents (look like two different grades of paper also!)

[intree]

Any One Able To Update This For Smile As I Am In The Same Boat With A Identical Agreement

[St1973]

I have been told by Smile to respond with a payment plan and that they have taken 271 pounds from another account I have with them towards the allleged debt. Can they do this if the debt is in dispute?

[pompeyfaith]

Have not seen the default notice, but I can tell you it will not comply because time and time again they get the dates wrong.

 

I have just had a third default notice from them on an account that is disputed and with the FOS.

 

So they have terminated the account on the back of a faulty Default Notice.

 

Nice One:D

 

PF

[pompeyfaith]

I have been told by Smile to respond with a payment plan and that they have taken 271 pounds from another account I have with them towards the allleged debt. Can they do this if the debt is in dispute?

 

This depends whether or not there are rights to offset moneys in the account Terms and Conditions.

 

PF

[St1973]

I have downloaded the T&C's from the smile site and I think section 13.10 allows them to do this...bugga!

smile_terms_and_conditions[1].pdf

[pompeyfaith]

To stop them doing this in the future you need to take all funds out of that account and put it in another if you do not have another account open one any DD you have you will need to transfer these too same applies to any funds and/or benefits you have going in the co-op now only have regard to money you owe them not your priority payments PF

[pompeyfaith]

it will need to be an account not connected in any way to co-op/smile it is the only way you can get back control of your financies

[St1973]

will do....should have forseen it personally. Just need to check my default notices etc and post them so I can send a more informed response

[St1973]

However, if the account is in dispute, can they do this???

[pompeyfaith]

Nope as the account is effectivly frozen while in dispute the question is do they reconise the account as disputed did you send the account in dispute letter? And was the funds they took benefits? PF

[St1973]

The account is in dispute and Yes I did send the letter. The money they took was Child Benefit.