1st Credit Agreement enforceable?

[anotherguy]

Hi

Ive read through the sticky on this topic and from that im assuming this agreement IS enforceable. Can someone please confim though please.

 

Ive actually enlarged and put both images on the same page for ease, but what they actually sent was on different sides of the same A4 page (each image is just 1/6th A4 in size).

Is there something about requiring each form to reference the other in some way? Because i cant see any linking on these.

 

thankyou

[citizenB]

There are a selection of agreements in the following link.

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

 

Have a look see, if yours is similar to any shown.

[babybear39]

They don't appear to be linked and they're laid out differently. I'd say unenforcable at a push but wait for more replies

[berrylover]

Firstly they don't appear to be referenced to each other, and secondly if they are enlarged copies are they legable? I can hardly make out what is written there now.

[anotherguy]

yeh at a push theyre just about readable, makes for slow reading though.

[anotherguy]

any definative thoughts on whether its enforcible or not please?

[Pinky69]

For a start, the heading for a credit card agreement laid down by the Consumer Credit (Agreements) Regulations 1983 is "Credit Card Agreement" not "Credit Agreement." The rest I cannot read and "barely legible" wouldn't stand up in court. MBNA microfiched all their documents not thinking they would need them and they have deteriorated with time. They must be easily read. originals and copies.

 

I would put this account in dispute on the grounds of illegibility and tell them there will be no payment until you receive legible copies of a properly executed agreement.

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

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 “

[anotherguy]

ill do that thankyou

[alfwithhair]

the heading for a credit card agreement laid down by the Consumer Credit (Agreements) Regulations 1983 is "Credit Card Agreement" not "Credit Agreement."

 

After seeing this quote I have checked all the application forms I have been sent by B/C Monument, MINT Crap One and MBNA puporting to be executed agreements and;

 

None of them say "credit card agreement"

they all say "credit agreement"

 

Is this quote 100% accurate?

[Pinky69]

No, I just write anything on here. Check the legislation yourself.

[lilly white]

He Is Correct.

[citizenB]

After seeing this quote I have checked all the application forms I have been sent by B/C Monument, MINT Crap One and MBNA puporting to be executed agreements and;

 

None of them say "credit card agreement"

they all say "credit agreement"

 

Is this quote 100% accurate?

 

Here you go, Fred.. some information, I have squirrelled away. Pinky is absolutely correct and the legislation is incororporated albeit a bit higgledgy piggledy in the information below. HTH

 

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1849705.html

Post 2

In any event, the Heading she points out is not, actually, correct if they want the alleged Application Form that would've been sent to you to become an alleged Agreement:

 

See: Consumer Credit Act (1974) and related Regulations

 

This is not headed correctly if they want this Application Form to become a Regulated Credit Card Agreement...they've omitted the word Card!

 

SI 1983/1553 (see link above) says [1(d) applies to your Card]:

QUOTE:

(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".

(3) Where the document and a pawn-receipt are combined, the words ", and Pawn Receipt," shall be inserted in the heading after the word

"Agreement".

 

(4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word "partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate.

(5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the

heading.

This from pt 2537

http://www.consumeractiongroup.co.uk/forum/legal-issues/168022-brw-particularly-nasty-bank-7.html#post1825132

Schedule 1 of SI 1983 / 1553

 

 

 

(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".

(3) Where the document and a pawn-receipt

are combined, the words ", and Pawn Receipt,"

shall be inserted in the heading after the word

"Agreement".

(4) Where the document embodies an

agreement of which at least one part is a credit

agreement not regulated by the Act, the word

"partly" shall be inserted before "regulated"

unless the regulated and unregulated parts of the

agreement are clearly separate.

5) Where the credit is being secured on land

the words "secured on" followed by the address

of the land shall be inserted at the end of the

heading.]

 

 

Actually Palomino, whilst as far as I am aware there are no regulations governing the form and content of application forms for credit, there are regulations governing the form and content (including the heading) of Consumer Credit Agreements. See Regulation 2(1) and Schedule I Consumer Credit (Agreements) Regulations 1983.

 

If the Application Form was intended, once executed, to serve as an agremeent, it seems to me the application form was bound to comply with Regulation 2(1).

They may also fall into difficulty with the Consumer Credit (Advertisements and Content of Quotations) Regulations insofar that if its an "advertisement" or at least doubles as one then its form and content is set out within those regs

Reply-Issue-3 Application Form CCA Area has an Incorrect Heading - they omitted the word Card.

 

Under Regulation 2(1) to the Consumer Credit (Agreements) Regulations 1983, for the document you posted to be regarded as an agreement it would have been necessary for it to be headed: "Credit Card Agreement regulated by the Consumer Credit Act 1974" in accordance with the Column 2 Information appearing at 1(d) of Schedule 1.

[alfwithhair]

Cheers got that CB

and didn't not intend to sound patronising Pinky, just I had never seen or heard about this before. So from reading the above I take it that this wording is only applicable with an actual executed agreement and not for application forms.

 

So if a credit agreement for a credit card doesn't say 'card' on the signing box does this make it worthless?

[Pinky69]

In my view it would be a De Minimus matter in court if all the prescribed terms were on the agreement and they had evidence that you had used the card - Judges have ruled in favour of creditors on much less. It becomes part of the dispute along with other aspects of an unenforceable agreement or an application form creditors/DCAs are trying to pass off as an agreement.

[alfwithhair]

In my view it would be a De Minimus matter in court if all the prescribed terms were on the agreement and they had evidence that you had used the card - Judges have ruled in favour of creditors on much less. It becomes part of the dispute along with other aspects of an unenforceable agreement or an application form creditors/DCAs are trying to pass off as an agreement.

 

Thanks for the clarity Pinky.

As my application form doesn't have a wiff of a prescibed term on it, shouldn't be accepted by a judge, but know exactly what you mean as a mate had his case ruled in favor of MBNA because they presentend his cut up card to the judge. But is yet another iron in the fire to use as ammunition against these chancers

[anotherguy]

very useful thankyou,

I will reply shortly to 1st credit stating i require a copy of my credit card agreement that is, as required, 'easily legible' and also point out the heading does not currently conform to the requirements you mentioned here.

[anotherguy]

just to update,

ive still not had a reply from 1st credit having asked them for an easily legible copy.

[babybear39]

Request their formal complaints procedure.

[anotherguy]

they actually sent me that already. It appears 1st credit have taken their warnings seriously, they are now acting in a noticibly more professional manner.

I'm happy to wait for their next reply. Either they send me an legible enforcible credit agreement or they will have to right it off.

[anotherguy]

My last reply to 1st Credit was as follows:

Dear Audrey Shim-Quee,

Thankyou for the recent reply (dated 29.07.09) to my request for a copy of the Consumer Credit Agreement. (Your claim of having previous sent one, is irrelevant since I did not receive it).

 

Firstly, the document you have sent is not, as is required by the Consumer Credit (Agreements) Regulations 1983, a copy of a "Credit Card Agreement". It is entitled a “Credit Agreement” which is not the same thing.

Under Regulation 2(1) to the Consumer Credit (Agreements) Regulations 1983, for the document you have sent me to be regarded as an agreement it would have been necessary for it to be headed: "Credit Card Agreement regulated by the Consumer Credit Act 1974" in accordance with the Column 2 Information appearing at 1(d) of Schedule 1.

 

Secondly, what ever it is is barely legible at best and unreadable in the main. It certainly does not comply with the requirement that it must be “easily legible”.

Having failed to provide me with a valid copy of the Credit Card Agreement, I therefore have no choice but to put this account in to dispute on the grounds of illegibility.

 

“The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

 

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 easilylegible “

 

There will be no payment made or offered until such time as you can provide me with a legible, properly executed agreement.

 

Yours sincerely,

 

 

I now have their reply (below), theyre saying that im wrong basically.

 

 

they are clearly trying to confuse matters. How come the two regulations contain different terminology? One with "credit agreement" and one without?

Edited September 28, 2009 by anotherguy

[Pinky69]

[EDIT] Send this to their Complaints Department and mark it at the bottom "Cc The Office of Fair Trading Licence Fitness Department." They are being monitored by the OFT so that should concentrate minds wonderfully. Stop speaking to them on the phone - everything in writing so you have proof.

 

Account In Dispute

 

Dear Sir/Madam

 

Thank you for your letter of (date), the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On (date) I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

 

 

You have failed to comply with my request, and as such the account entered default on (date) (12+2 working days AFTER the CCA request was sent)

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled, while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter, which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours

Edited October 22, 2009 by alanfromderby

[babybear39]

[EDIT]

 

Send them Pinky's letter and tell them to get someone who actually knows what they're doing to sort this out and report them to TS, the OFT and the ICO

Edited October 22, 2009 by alanfromderby
Unhelpful.

[anotherguy]

ok thankyou very much..

if im now involving the OFT i should mention i have kept a history of 1st Credits unlawful actions and harassment going back to Aug 2008. Should i also include these notes to the OFT?

Its everything from the usual twice daily harassment calls at work (despite having put in writing not to) and even writing to me at my place of work when they have my home address! right through to ficticiously making up payment agreements between us of £70 per month (even though the account was in default).

[Pinky69]

Yes - send them a copy of everything that breaches consumer credit law. Nail the barstewards!

[anotherguy]

I had their reply today:

 

"We consider that the documentation we is satisfactory to prove your liability to the repay the debt. We note that you do not agree with us, but are prepared to place the matter before a judge to decide.

 

The account is due to progress to our legal department on 1st November 2009, however we must stress that this is our last resort and would much prefer to make an arrangement with you for the repayment of the remaining balance.

 

Please contact us to make an offer or to seek a reduced settlement figure for a lump sum payment.

 

We look forward to hearing from you in due course."

 

signed by their Compliance Officer (RA)

 

any thoughts on the wording of the reply. I'm assuming its along the lines of 'see you in court'?