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BOS Preference Account - is this agreement enforceable?


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Hi all,

 

After a wait received copy agreement, with past and present T&C from BOS for a preference account.

 

This was taken out with a car loan at the dealership. I was advised that I had automatically qualified for it, and that it was an extra credit facility, which you access with a cheque book and also a card.

 

I can't remember for the life of me what, if anything, I signed for the preference account part - but certainly didn't ask for, or apply for it, at the same time as my car finance (which was repaid a few yrs ago when I sold the car). I also don't remember signing 2 agreements i.e one for the car and one for the pref account - but memory is a funny thing and I might well have done.:???:

 

But I do know, that I wasn't told it was a bank account, or ovedraft facility ... as I would never have taken it, I already had a bank account and didn't need another one.

 

I never recd any paperwork from them. And it was my impression that the pref account worked just like a credit card, but with more flexability as you could write cheques.

 

They have also sent me an arrears letter (and added a £28 default charge :eek:) , and say they have sent the arrears letter under the terms, and to comply with, the CCA74, and have also referred to the account in telephone calls as a "credit card".

 

So thats where I am ... take a lookie at the attached and give me your comments .... !!!

 

attach 1 is their covering letter

attach 2 is the agreement, plus orig t&c and current T&C

bos agreement.pdf

bos agreement and t&cs.pdf

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Hi,

Feb 98.

Also, in March they sent me revised T&Cs for the account, which were to take effect from 23 April 09, with the new TCs having a bold heading of "Credit Agreement Regulated By The Consumer Credit Act 1974".

It has the new default charges of £12 etc, cancellation rights etc. (I can scan and post this if it helps).

 

Thanks for help ....

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Abby,

 

I think that what you have posted here is the missing piece of the jigsaw because it seems that BoS themselves have now confirmed that this agreement should be regulated by the Consumer Credit Act. This being the case, where on your agreement does it state this?

 

I am certain that the lack of any reference to the CCA and all of the rights and remedies it provides makes this totally unenforceable. I'd love to see some more opinions on this because on another thread they have referred to this type of account as being a current account.

 

Regards.

 

Fred

Before you criticise another man you should first walk a mile in his shoes. Then, when you criticise him, you'll be a mile away and he won't have any shoes on.

 

Don't get me confused with somebody knowledgeable by all those green blobs. I got most of them by making people laugh.

 

I am not European, I am English.

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Hi Fred,

 

Its a bit late now, but I will scan tomorrow what they sent me in March, and hope it helps if you're (or others)are in the same situation.

 

I really genuinely didn't know it was classed as a bank account, until reading on here ... an arguement could also be that I was mis-sold this by the dealer, who mis-represented the terms of the account.

 

As a bank account, I would guess that Cerbs is right, but I have suspicions that I didn't sign anything like this form, which seems to have all the bells and whistles in it ....

 

As a credit account, though, I thought myself just as you must have posted your msg, that doesn't the agreement have to have the CCA reference in it etc ...

 

The agreement, is also referring to it being an application form, but there is no personal status info included i.e salary etc, so how did they perform a "responsible lending and status check"? Also, I didn't actually apply for this, as I say the car salesman at the dealership, just said when I went back to sign the car finance and collect the vehicle, that I had automatically qualified for an extra credit facility, and I would be a fool not to take it as it was bound to come in handy, even just for paying for services, tax, MOT bills for the car.

 

I'm also pretty sure that mge lenders have to evidence responsible lending to a court, when they are attempting to repossess a property, ie that they checked the affordability issues etc before advancing monies to the individual - so don't know if I could throw this in the mix ?

 

I'm really naffed off if its classed as a bank account, and not regulated by the CCA. As I would never knowingly have entered into an agreement that wasn't regulated, as this is the only protection you get from the finance industry, second to which I would just not have accepted - and on this basis it was definately mis=sold to me by the car salesman, who acted as their represenative.

 

Ooh ... please give me a ray of light to get rid of them ... !!!!

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Hi Fred,

 

Its a bit late now, but I will scan tomorrow what they sent me in March, and hope it helps if you're (or others)are in the same situation.

 

I really genuinely didn't know it was classed as a bank account, until reading on here ... an arguement could also be that I was mis-sold this by the dealer, who mis-represented the terms of the account.

 

As a bank account, I would guess that Cerbs is right, but I have suspicions that I didn't sign anything like this form, which seems to have all the bells and whistles in it ....

 

As a credit account, though, I thought myself just as you must have posted your msg, that doesn't the agreement have to have the CCA reference in it etc ...

 

The agreement, is also referring to it being an application form, but there is no personal status info included i.e salary etc, so how did they perform a "responsible lending and status check"? Also, I didn't actually apply for this, as I say the car salesman at the dealership, just said when I went back to sign the car finance and collect the vehicle, that I had automatically qualified for an extra credit facility, and I would be a fool not to take it as it was bound to come in handy, even just for paying for services, tax, MOT bills for the car.

 

I'm also pretty sure that mge lenders have to evidence responsible lending to a court, when they are attempting to repossess a property, ie that they checked the affordability issues etc before advancing monies to the individual - so don't know if I could throw this in the mix ?

 

I'm really naffed off if its classed as a bank account, and not regulated by the CCA. As I would never knowingly have entered into an agreement that wasn't regulated, as this is the only protection you get from the finance industry, second to which I would just not have accepted - and on this basis it was definately mis=sold to me by the car salesman, who acted as their represenative.

 

Ooh ... please give me a ray of light to get rid of them ... !!!!

 

Hi Abby,

 

It seems like BoS are only just trying to claim that this is a bank account - most of the cases on here seem to indicate otherwise. Obviously, from the point of view of BoS, it would be better if it was a bank account. This way, they wouldn't have to pay back unfair charges at the moment because of the OFT action and they wouldn't have to provide a copy of the agreement under the CCA because there wouldn't be one.

 

I think they are saying one thing to some people and something else to others.

 

Have you checked your credit report? On mine, this account is listed as a Credit Card. Also, I haven't read back through all of your posts, but did they respond in any way to a CCA request? If it was a current account I would think they would just write back and say so. They can't have it both ways.

 

Regards.

 

Fred

Before you criticise another man you should first walk a mile in his shoes. Then, when you criticise him, you'll be a mile away and he won't have any shoes on.

 

Don't get me confused with somebody knowledgeable by all those green blobs. I got most of them by making people laugh.

 

I am not European, I am English.

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Hi Fred,

 

BOS (eventually) responded to my CCA request, saying in their covering letter, which is on here, that they were responding under section 78 (i think ..), and also that they had now satisfied their obligations under the act.

 

Will scan the new t&c in the next hour and get them on so you can have a look through.

 

They haven't actually said to me its a bank account, but when I recd the CCA is mentioning overdraft facility ... and as said previously I genuinely had no idea, and had no reason to believe from what I was told, that this was anything other than, for what of a better description, a credit card account/facility.

 

Not sure what or how to start a letter to them, or if what they sent me meets CCA requirements, or not ... but I think if it is regulated under the act, then what they sent me need to say so ... but would this be good enough on its own to scupper enforceability>

 

I'm trying to have a scout through loads of diffeerent threads, to cobble something together and see where that takes me.

 

Any hints or tips greatly welcome for what to include, exclude, base an arguement on ... etc .. :)

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Hi Fred,

 

BOS (eventually) responded to my CCA request, saying in their covering letter, which is on here, that they were responding under section 78 (i think ..), and also that they had now satisfied their obligations under the act.

 

Will scan the new t&c in the next hour and get them on so you can have a look through.

 

They haven't actually said to me its a bank account, but when I recd the CCA is mentioning overdraft facility ... and as said previously I genuinely had no idea, and had no reason to believe from what I was told, that this was anything other than, for what of a better description, a credit card account/facility.

 

Not sure what or how to start a letter to them, or if what they sent me meets CCA requirements, or not ... but I think if it is regulated under the act, then what they sent me need to say so ... but would this be good enough on its own to scupper enforceability>

 

I'm trying to have a scout through loads of diffeerent threads, to cobble something together and see where that takes me.

 

Any hints or tips greatly welcome for what to include, exclude, base an arguement on ... etc .. :)

 

Hi Abby,

 

There aren't that many threads on Preference Accounts, but I'm certain you will find what you are looking for. If it is regulated under the CCA, then this HAS to be stated - along with a section about your 'rights and remedies' under this act.

 

This is the tack I've taken with BoS all along and so far it's sent 3 DCAs packing.

 

Regards.

 

Fred

Before you criticise another man you should first walk a mile in his shoes. Then, when you criticise him, you'll be a mile away and he won't have any shoes on.

 

Don't get me confused with somebody knowledgeable by all those green blobs. I got most of them by making people laugh.

 

I am not European, I am English.

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Hi Abby,

 

There aren't that many threads on Preference Accounts, but I'm certain you will find what you are looking for. If it is regulated under the CCA, then this HAS to be stated - along with a section about your 'rights and remedies' under this act.

 

This is the tack I've taken with BoS all along and so far it's sent 3 DCAs packing.

 

Regards.

 

Fred

Snap, I followed the same route as Fred, sent 2 packing so far, all quiet now. Waiting for the next to try.

Have a llok at Freds post, it explains a lot.

Take Care

Jon

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Hey Fred & Jon,

 

Just been reading Mr Fred's thread, and your own Jon.

 

Was reading yours Jon with interest - as we were both given this acct along with car finance, both in 98 - but what they sent me to compared with what they sent you is completely different - mine is a completely stand alone document, whilst yours, and everyone elses it seems, is a split page application with whatever loan they were taking at the same time on the same signed agreement.

 

I must admit, I'm now really suspicious over what they have sent, as I still really don't remember signing anything but the app for the car hp loan - of which they didn't include a copy (but the car loan was paid off in about 2000/2001).

 

Anyhoo, having taken Freds advice and also read on his post from others, I have just done an experian credit check ... scary when its all laid out in front of you, and you can't hide from yourself, and pretend you don't owe the amounts your looking at ... !!!

 

But .... there it appeared ... like a beautiful mirage ...

 

Company Name - HBOS/Preference Accounts

Account Type - Credit Card/Store Card

 

 

So it is registered as a credit card, and the new t&cs (recd in March) also state regulated under the CCA74, and it was given to me, as an unsolicited credit facility on top of the car finance package by the cardealer.

 

Yes .... have taken a screen print, and stored it as a hard copy just in case (as advised by Mr Fred, in case they think about a doing a bit of jiggery pokery .. in altering the old acct description ..)

 

So, shall take your advice guys, and write to them, saying something along those lines, but as I say, not sure how to get a letter together yet ... if either of you 2 experts could give me a few tips, or draft paragraphs, I would give you both a big kiss ... xxxxx (don't tell Mrs B Fred will you .. !!);)

Edited by Abby25
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Interesting indeed.

 

My wife has one of these accounts, and Halifax recently sent a copy of the agreement.

The original agreement was taken out by my wife at the time of a car loan. She didn't quite realise that the agreement wasn't an integral part of the car loan application - she just signed the papers offered to her.

 

The agreement makes no mention of the Consumer Credit Act at all. However the nature of the account is such that it can only be interpreted as coming under the aegis of the CCA.

 

The agreement itself is headed 'Capital Bank Preference Account'. It was (until my wife ran into difficulties) administered from a Chester address. There is only one banking organisation I know of that is based in Chester.

 

All of this is very odd.

I really do appreciate all those 'thank you' emails - I'm glad I've been able to help. Apologies if I haven't acknowledged all of them.

You can also ding my gong if you prefer. :)

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Hi Palomino,

 

Welcome ... your wifes story is a mirror or mine, as you've probably read from my initial post on here.

 

Could I ask, does her agreement doc look like mine?

 

Apart from what they have sent me not containing any reference to the CCA74, another thing that immediatly struck me is that the agreement BOS sent me, contains clear reference that it is an (apparently standalone) application form.

 

However, there is no evidence in the application, of any of my personal info, such as salary, time at address, etc, the normal info required by a creditor to perform an affordability and status check.

 

So if this info isn't in the application, then how did they perform their legal obligations as a creditor, in performing an affordability and status check?

 

This obligation is regardless of a bank account or credit account - as even for an overdraft your salary etc is checked to determine the amont of od you can comfortably afford to run and maintain.

 

I've a mind to write and do a SAR, as I would like to also nail them on affordability as well as the lack of CCA74 statement and terms, or do you think go straight for the CCA angle?

 

As I was thinking overnight .. no can't sleep with worry:mad:, that the more ammo I have to arm myself with, before I bang off the "you're out of order" letter, the better sunk they will be .. as I don't want to miss things for the sake of speed ... but maybe I could have others thoughts, as if you think its just wasting time in doing the SAR request and to just go straight for the non complaince angle?

 

Mr P. would it be possible for you to post your wifes agreement up on here so that I can compare with mine, or if you prefer not to, could you compare mine with hers and let me know if they are the same. As I say, mine seems to be the only one I've seen thats on its own little page, and I'm intrigued to know if anyone else has something similar to me ..

 

Phew .. long post I know, but once these little fingers, and the brain gets warmed up I just can't stop ... ..!!!!!:lol:

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Hi guys,

 

Have got a letter together for BOS, would someone take 5 mins to have a look at it for me and see if its ok?

 

I'll send as a PM if thats ok....;)

 

Thanks all ....

Abby xxx:)

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Hey Fred & Jon,

 

Just been reading Mr Fred's thread, and your own Jon.

 

Was reading yours Jon with interest - as we were both given this acct along with car finance, both in 98 - but what they sent me to compared with what they sent you is completely different - mine is a completely stand alone document, whilst yours, and everyone elses it seems, is a split page application with whatever loan they were taking at the same time on the same signed agreement.

 

I must admit, I'm now really suspicious over what they have sent, as I still really don't remember signing anything but the app for the car hp loan - of which they didn't include a copy (but the car loan was paid off in about 2000/2001).

 

Anyhoo, having taken Freds advice and also read on his post from others, I have just done an experian credit check ... scary when its all laid out in front of you, and you can't hide from yourself, and pretend you don't owe the amounts your looking at ... !!!

 

But .... there it appeared ... like a beautiful mirage ...

 

Company Name - HBOS/Preference Accounts

Account Type - Credit Card/Store Card

 

 

So it is registered as a credit card, and the new t&cs (recd in March) also state regulated under the CCA74, and it was given to me, as an unsolicited credit facility on top of the car finance package by the cardealer.

 

Yes .... have taken a screen print, and stored it as a hard copy just in case (as advised by Mr Fred, in case they think about a doing a bit of jiggery pokery .. in altering the old acct description ..)

 

So, shall take your advice guys, and write to them, saying something along those lines, but as I say, not sure how to get a letter together yet ... if either of you 2 experts could give me a few tips, or draft paragraphs, I would give you both a big kiss ... xxxxx (don't tell Mrs B Fred will you .. !!);)

 

Hi Abby,

 

You might be interested in this post: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/94614-fred-bassett-bank-scotland-4.html#post2164486

 

Regards.

 

Fred

Before you criticise another man you should first walk a mile in his shoes. Then, when you criticise him, you'll be a mile away and he won't have any shoes on.

 

Don't get me confused with somebody knowledgeable by all those green blobs. I got most of them by making people laugh.

 

I am not European, I am English.

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I think the fact that they haven't entitled it 'CREDIT AGREEMENT REGULATED by the blah blah....when it clearly should be but this is quite complex.....it might be good to get Paul Walton to have a look through....

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Hi 42man,

 

Thanks for reply, the letter I've got together is bascially on that thrad, together with the fact that there is nothing in the agreement on the protection and redress offered under The Ac.

 

Could you advise how I can contact Paul - do you think he would mind having a look at it for me?:)

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Hi all,

 

Have just found this - which could be an appropriate defence for non-enforceablility, together with the absence of rights and protection under The Act in the docs supplied, is this sufficient for me to challenge the agreement?

 

Under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/SCHEDULE 1 Information to be Contained in Documents Embodying Regulated Consumer Credit Agreements other than Modifying Agreements it states

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words--

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require.

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--"Credit Agreement regulated by the Consumer Credit Act 1974".

 

Also, have had a read of Steven4064 thread on enforceability - which seems to support that this is unenforceable ... Steven if you listening .. could you have alook at this for me?

 

Have a letter written, if someone would have a look at it for me to see if its any good?

 

Abby xx

Edited by Abby25
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The agreement seems to be for a current account and, as such, doesn't have to comply with all of the CCA 1974 - it dosn't have to comply with Part V (sections 55-74). In particular, that means it deosn't have to comply with:

 

- s60 on the form and content of agreements,

- s61 which is the section on properly executed agreements

- s64 on notice of cancellation rights

- s65 on enforceability of an agreement that is not properly executed

 

So any discussion on enforceability under the CCA 1974 is effectively usesless since the relevant bits of the Act don't apply to this sort of agreement.

 

 

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Hi Steven,

 

Have checked my experian account, where this is registered as a credit card/store card, and recent t&cs sent to me in March are headed "Credit Agreement Regulated Under The Consumer Credit Act 1974" - which also now include a section on redress and recourse available under The Act.

 

The recent t&cs were to give notice of changes to default charges reduced to £12, a change to minimum payments under the account from 5% to 3% of the balance, and a few other bits & bobs.

 

The also replied to my CCA request saying they were doing so and thereby had fulfilled their obligations under Section 78 of The Act. They have also sent notices of default charges and arrears, saying that they are bound to do this to remain compliant and to meet the terms of the CCA74.

 

Does this info I already have, place it under the terms of a running credit account and thereby regulated by CCA74 ... ?

 

As it doesn't appear BOS are classing it as a bank account themselves, (which to be honest, is not how it was explained to me when I recieved it as part of my car hp finance), and this seems to be backed by how they have registered it with experian.

 

Do you think its worth sending a challenge letter on this basis, i.e no prescribed heading/account description, or reference to rederss under The Act in what they have presented as being signed at the time I took the car HP finance?

 

As always, many thanks for all your help and advice ...:)

Abby x

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Well, all of that sounds like a credit card/store card. However, the agreement you have posted is no way a credit card agreement. If that is all they have, then ISTM that there are grounds for a challenge on the basis this is a regulated agreement but they have not supplied a copy of an enforceable agreement that corresponds to the account in dispute.

 

 

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Thanks Steven,

 

I know its really confusing isn't it ... I've attached my letter I was going to send - if you have a min, would really value your opinion.;)

 

Abby xx

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Another point you don't seem to have made is that the puported agreement doesn't contain any of the terms prescribed in schedule 6 of the Consumer Credit (Agreement) Regulations 1983 as relating to a running-account credit agreement.

 

Personally, I like simpler letters than this (but that is just me :))

 

 

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Thanks Steven,

 

I know .. once the little fingers get going ... but I just didn't want to leave anything off, ie any case law, them persuing etc ... hopefully I'll bore them to death and they'll just give up rather than get another one from me ....!!!:lol:

 

I'll pop in the guidance you've given me ... and say a massive thank you for your help ... !!!

 

I'll post up and let everyone know whats going on, and hopefully it will help other Pref Accounters who are a bit behind me in the process ..

 

Abby xx:)

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