Jump to content



Lloyds CCA - is it enforceable?


Please note that this topic has not had any new posts for the last 4044 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

You need to complain to the ICO about the lack of SAR.

"To love unconditionally is the greatest gift, laughter is a close second" .To give your time to help others after being helped here is the best way to show your appreciation to your fellow CAG members.

 

Please note that this advice is given informally, without liability and without prejudice. Seek the advice of an insured qualified professional if you have any doubts. All my knowledge has been gained here, for which I'm very grateful. I'm a Journalist, not a law professional.

 

If you do PM, make sure to include a link to your thread as I don't give out advice in private ;)

BB 13 - DCAs/banks and solicitors 0.

 

I get a fresh start to get on with learning to live with severe disabilities when they could have had something if they'd been understanding...

 

<--- If you feel I've helped, please twinkle my star :)

Link to post
Share on other sites
  • Replies 126
  • Created
  • Last Reply

Top Posters In This Topic

I wouldn't have said so because the prescribed terms are not within the "four corners" of the agreement...

 

Here is a letter I sent to a creditor who sent me something very similar. Just change the dates/info as required but it's fairly straightforward :)

 

Thank you for your letter dated 22 July 2009 which states you believe you that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1) by enclosing a copy of a credit agreement, a representation of a Notice of Assignment and your introductory letter.

 

I feel I must point out what a consumer credit agreement is. Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed or enforced by a court. In addition this credit agreement will include specific terms relating to permission allowing the performance of any account being relayed to credit reference bureaus under the Data Protection Act 1998. More importantly, for a credit agreement to be in force it must adhere to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements.

 

For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553. Any document purporting to be a credit agreement without the prescribed terms does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974. For your information, in case you are unsure, 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—

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)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.”

 

 

This is justified in court as the correct format and there are plenty of instances in case law which I can draw your attention to which back up this fact. Therefore any document purporting to be a credit agreement must meet the prescribed terms to be valid.

 

Now, drawing your attention to the document you have provided to me, I must point out that nowhere on the form does it describe any prescribed term as mentioned above. In fact the document, despite being far from 100% readable, looks more like an application form for credit rather than a “credit agreement”. If you believe this is an enforceable credit agreement, which I have to believe you do as you think it fulfils your obligations under the Consumer Credit Act 1974, then I challenge you to take me to court to enforce it.

 

Since the document you have provided 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.

 

I will not refer you to the Office of Fair Trading Debt Collection Practice Guidelines 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”

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. 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. Please note your membership with the Credit Services Association requires you to comply with the Office of Fair Trading at ALL times and there is significant basis for complaint should you choose to ignore the following:

 

Since the agreement is unenforceable and both the default notice and record with the credit reference agencies is, as a consequence, non compliant, it would be in everyone’s interest to consider the matter closed and for the debt to be removed. 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 as I see fit.

 

I respectfully request a response to this letter in 14 days. I have already sent in a letter under section 10 of the Data Protection Act which you are already in default of. This complaint will be registered with the Information Commissioner with a claim for compensation if no satisfactory response is received within 14 days.

 

Yours faithfully,

Link to post
Share on other sites

one other thing, there was a barcode at the top of each page which links the whole document together, I blanked it out as it would identify me. Does that make a difference to being within the four corners of the agreemnet?

Link to post
Share on other sites
cheers for that vjohn - out of curiosity, what response did you get to it? Did it get them off your back?

 

It did... I received a letter stating they would remove the account from their records and that they apologised for having contacted me about the debt. I suspect it was because the debt was statute barred anyway but either way it sorted the problem out.

 

one other thing, there was a barcode at the top of each page which links the whole document together, I blanked it out as it would identify me. Does that make a difference to being within the four corners of the agreemnet?

 

Doesn't matter to be honest... the four corners agreement rule is established in case law and it is the minimum requirements a CCA must have with a signature on it... it can only be on one piece of paper and must contain the prescribed terms.

Link to post
Share on other sites
  • 2 months later...

regards the prescribed terms being within the four corners of agreement rule, would a bar code on each page link the document to make it one?

 

Direct reference to or page numbers can work, barcodes........don't know.

 

It would need to encode the info, (ie this is part of agreement blah, blah - not just name anf address etc - and they would need to prove it.

 

David

Link to post
Share on other sites

thanks for that David. The pages are numbered 1 to 6 and there is a barcode on every page except the first one, was hoping that would be enough to render it unenforceable as not within the four corners etc but now I'm not so sure.

 

I wonder if you or anyone else would be good enough to take a quick look at my CCA on here? I only had the one response and am only just getting round to doing a reply to lloyds but I'm not sure the letter provided by another cagger is right for me. thanks.

Link to post
Share on other sites

Hi,

 

Just had a quick look at the agreement you posted up ...

 

I'm not a CCA expert, but from my own experiences and advice recd, the previous reply you had could be a little bit off course.

 

This is my understanding .... a properly executed agreement must have the prescribed terms within the 4 corners of the agreement, BUT the agreement does not have to be limited to one page, but can run to several ... HOWEVER, if it does, then there must be clear reference made to this, and a noted relationship between each page forming the executed agreement, with the prescribed terms being within the noted pages forming the agreement, with your signature clearly noted. (nb - absence of the sig of the lender is not enough to render unenforceable on its own).

 

From what I have seen, it does look as though the prescribed terms are all there i.e loan amount, total interest applicable (APR), term of loan and amount of monthly payment ... BUT and a BIG BUT ..... it looks from what I read that you took loan protection (PPI) and that this was added at outset ...(i.e front loaded)

 

This can be a major area to challenge .. especially where it is front loaded to the loan, main areas of contention are ... if the PPI wasn't suitable to your requirements, health or personal situation i.e they sold the ins policy, without correctly assessing your suitability, or if it was made mandatory with the loan and wasn't disclosed to you at inception etc ... you get the idea .... I think theres also something about secret commissions relating to PPI .... which also can render the agreement void.

 

However, I'm no expert on the PPI situation, but I know there has been a recent court case where an 8k debt was wiped by the courts because of the impropr sale of PPI. Have a read back on the recent threads as I know someones posted on this.... and you will get loads of usefull info if you read though it.

 

I would also pop up a post to have one of the experts give you advice on the PPI, and if this is an area you'll be able to challenge the agreement on ... could be worth a shot as theres a hell of a stink at the moment regarding the mis selling of PPI in connection with finance....and could get you the result you want ..

 

Anyhoo, I'm sure others will be soon be along to help and advise ... theres lots of help on here if you ask ...

 

Good luck ..... !!

Link to post
Share on other sites
However, I'm no expert on the PPI situation, but I know there has been a recent court case where an 8k debt was wiped by the courts because of the impropr sale of PPI. Have a read back on the recent threads as I know someones posted on this.... and you will get loads of usefull info if you read though it.

 

The link you want is this.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/223216-court-lets-woman-off.html

 

MBNA actually lost as they could not provide an agreement that worked. However, the judge also ruled that the secret commissions that MBNA got for the PPI constituted an 'unfair relationship' and brought the PPI aspect and the whole agreement into question.:eek:

 

I suspect your agreement, unless the figures are wrong and I am missing something, is enforceable. The above certainly gives you an angle of attack however.

 

David

Link to post
Share on other sites

Thanks very much for your responses Abby and David. I did suspect that the agreement might be enforceable but was hoping desperately that it wasn’t.

 

 

The loan was conditional on my taking out the PPI at the time, but I did make a claim which was successful so I’m not even sure if I’ll be able to attack.

 

I’m certainly going to have to do a lot more reading by the looks of things, on both the PPI section (only just found that) and also on the £8k thread (thank you for the link).

 

In the meantime, I’ll have to start paying the £1pm again.

 

I’m going to be pretty much out of action for rest of today and tonight so will have good read as soon as I can.

 

Thanks once again.

Link to post
Share on other sites

The loan was conditional on my taking out the PPI at the time, but I did make a claim which was successful so I’m not even sure if I’ll be able to attack.

 

 

If that's the case - claim or not, they can't do that

 

The motives for them having that policy of course are.....the hidden commissions:D

 

David

Link to post
Share on other sites
  • 2 weeks later...

A very quick query on this please. I've been reading through the agreement again tonight and have spotted something. I'm not sure how important it is but perhaps someone could have a quick look for me (the link is in post #3 above).

 

What I have noticed is that the APR under "key financial information" is quoted as 6.40% but under "other financial information" the annual interest rate quoted is 6.26% - can anyone tell me if this would make the agreement unenforceable?

 

Many thanks.

Link to post
Share on other sites

One is the APR the other is annual interest rate these are different as the annual rate is fixed amount on the money for each year i.e 6.26% the APR is calculated on extras and the interest rate as the balance reduces so will be higher and the true cost of borrowing the money

 

...this agreement looks enforceable in every respect

Live Life-Debt Free

Link to post
Share on other sites

Following on from your post on another thread, as Vjohn82 points out, for it to be enforcable, page 2 would have to be the rear of page 1. If they produce it as one document in court, then it would be enforcable, but as 2 pages, not.

Link to post
Share on other sites

thanks Vint. The doc consists of six separate pages and doesn't refer to any other page numbers anywhere within the doc, but there is a barcode which has the agreement number on it which appears on each page.

 

I'm getting seriously confused (my own fault as I have started threads all over the place instead of sticking to one and keep getting lost!), on another thread I posted (here) B3rty said the agreement is enforceable.

 

Help!

Link to post
Share on other sites

Right... you're being thrown some pretty misleading information regarding this agreement.

 

Quite simply, all of the information must be contained within the four corners of an agreement; the prescribed terms of which must be between the heading "Consumer Credit Agreement" and the signature box.

 

The prescribed terms are not contained within the document containing your signature therefore, in my opinion, the agreement is unenforceable.

 

Firstly, to comply with section 61 of the consumer credit act 1974, which by the way refers to the signing of an agreement, a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed or enforced by a court. In addition this credit agreement will include specific terms relating to permission allowing the performance of any account being relayed to credit reference bureaus under the Data Protection Act 1998. More importantly, for a credit agreement to be in force it must adhere to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements.

 

For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553. Any document purporting to be a credit agreement without the prescribed terms does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974. For your information, in case you are unsure, 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—

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)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.”

 

 

of L.J Tuckey in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ. 299:

 

 

“Schedule 1 to the 1983/1553 Regulations sets out the ‘information to be contained in documents embodying regulated consumer credit agreements’. Some of this information mirrors the terms prescribed by Schedule 6, but some do 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.”

 

Also see http://www.consumeractiongroup.co.uk/forum/general-debt-issues/221597-credit-agreement-terms-conditions.html

 

&

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/213608-new-kid-block-unenforceable.html#post2348539

Link to post
Share on other sites

...this agreement looks enforceable in every respect

 

Explain, so that the OP is not confused, how this agreement is enforceable using appropriate case law which would demonstrate how an enforcement order was made on a CCA where all of the prescribed terms were not on the same document as the signature...

 

OR

 

...if you do not have the above some reasoning why you believe this to be the case.

 

This will help clarify the situation for the OP.

 

Thanks

Link to post
Share on other sites

lets face it- if you look at ANY legal document or agreement- the signature ALWAYS comes at the bottom of the last page- it's common sense that all the terms and conditions are read- then signed

 

ANY document that has a signature on the first page and then has terms on the back and in some cases not even referred to as being on the back HAS to be a highly suspect document

Link to post
Share on other sites

however i have to disagree about a "signature document" consisting solely of ONE page

 

for instance IMO if there was a document which was a four fold four page A4 document - to me that would constitute a single document and if a signature appeared at the bottom of the fourth page and the text flowed naturally from one page to the other - I would say that that signature is within the "signature document"]

 

i think we have to be careful not to re write to our own ends- what a "signature document" would consist of lest we lead others astray

Link to post
Share on other sites
  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...