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Abby25

Could some explain parts s61 (1) parts a -c

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Hi all,

 

I am having a rumble with M&S over section 61 (1) of The Act, they are basically saying that the application form they sent me does not have to have the prescribed terms in it, as S61(1)(b) of The Act, says they can be emboided by reference.

 

Now the app I have is for a pref account, and makes no reference to anyother document, and also has no prescribed terms at all in it.

 

They are trying to use the terms and conditions page, which they say was the reverse of the application, as meeting S61(1)(b), in which the pres terms do not have to be in a single sheet of paper, but can be embodied by reference, which they say the courts are supporting.

 

So, a bit of guideance on S61 really, I;ve already quoted S61 (1)(a) to them, and said that the pres terms have to be within the 4 corners of the agreement, with supporting case law, but they persist in this 61 (1)(b) nonsense ...

 

Help of a higher order required guys !!!!!???

 

Abs xxx:)

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Here is a segment of a letter I sent to Cabot when they used the old s.61 argument ;-)

 

 

section 189(4) of the Consumer Credit Act 1974 which states:

 

“A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.”

 

Aside from the fact that the document itself does not contain any wording stating that the signatory agrees to be bound by terms and conditions mentioned overleaf or to terms and conditions it is also illegible; this is an important consideration as Section 2(1) of the Consumer Credit (Cancellation notices and Copies of Documents) Regulations 1983 states quite specifically.....

2 “Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable”

 

However, the above being a primary consideration of medium importance in the overall scheme of things the next is a secondary consideration which has far reaching consequences being that it dissolves the argument of section 189(4) stated to me by Lucy O’Hara; it must stated it is a misappropriation of Cabot’s legal position to use this point as Cabot must comply with legislation and case law. I will refer here to a court case which held:

 

In 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:

 

Quote:

"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.

 

The document you have provided does not even meet the basic requirement of meeting one prescribed term. I suggest this is taken into account. Please note should you provide an unsatisfactory response I will use this legislation and case law (precedent) to defend any court action. Please note section 2.6 of the OFT Debt Collection Guidance mentioned above; a lack of an enforceable credit agreement is classed as a dispute and you should seek to end collection activity on the account once a dispute has been lodged - this includes removing data being recorded with third parties (inc. Credit Reference Agencies) and seeking clarification from the original creditor on the appropriate action to take. If you are now the account owner then the course of action to take is clear; either seek a court order to sustain your position or remove the records from your databases.

 

There is a futile position on Cabot’s part to continue to pursue this account and I trust the legal team realise this point before it costs Cabot considerable time, resources and money to comply with an Financial Services Authority, Office of Fair Trading, Information Commissioner and Credit Services Association investigation.

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