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Help Please: CCA Received today from MINT (RBS)

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Help needed please...

 

This morning I received my CA from MINT. Could some CAG members have a look and help me work out if it is unenforceable? Thank you so much in advance. I have attached the whole file as a PDF to this thread and also via photobucket. I hope the individual links work!

Cheers,

Jameson

 

 

http://i896.photobucket.com/albums/ac162/jameson78/CCA_MINT-1.jpg

http://i896.photobucket.com/albums/ac162/jameson78/CCA_MINT-2.jpg

http://i896.photobucket.com/albums/ac162/jameson78/CCA_MINT-3.jpg

http://i896.photobucket.com/albums/ac162/jameson78/CCA_MINT-4.jpg

http://i896.photobucket.com/albums/ac162/jameson78/CCA_MINT-5.jpg

http://i896.photobucket.com/albums/ac162/jameson78/CCA_MINT-6.jpg

CCA_MINT.pdf

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It's an application which does not contain any of the prescribed terms, send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms 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 for the definition of what is required. Suffice to say none of the terms are present in the document

 

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.

 

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 refer to 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.

 

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

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client 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

Print name do not sign

 

Edit to suit


Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

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It's the agreement which I filled in by hand and signed at the bottom. When you say it does not contain any of the prescribed terms what do you mean exactly. I take it these "prescribed terms" are not the regular terms and conditions they have sent me such as credit limits and calculations of APR? :confused:

 

Forgive me, I'm learning...

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Here you go:

 

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

 

For a Restricted Use Debtor Creditor Supplier

  • Where the dealer is the supplier and the creditor is the one providing the finance.
  • The money can only be used for the purpose it is given.
  • There is no interest on the purchase (the cash price is the same as the total price)
  • And there is no advance payment

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

If it doesn't have the correct terms within the agreement (not the T&C's) it's unenforceable.

 

David

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The prescribed terms have to be within the 4 corners of the signature document. Front and back of one sheet of paper.

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The prescribed terms have to be within the 4 corners of the signature document. Front and back of one sheet of paper.

 

This is the front of my signature document: http://i896.photobucket.com/albums/ac162/jameson78/CCA_MINT-2.jpg

 

They sent this on one page one side only. I don't know if there is supposed to be anything on the otherside. There is no reference to a PTO on the front signature side.

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Because the reverse of the document is missing it is unenforceable.

 

A lot of creditors scanned these documents but neglected the reverse, then they were either destroyed or lost.


Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

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Why do RBS rely upon a term refering to pre-contract information implying it forms part of a fixed sum agreement?

 

Mine..... which is an application from Aug 2007 states something along the lines of 'that by signing this document you are confirming you have read and agree to the terms contained within the pre-contract information'

 

Have had some luck with mine but...... what do you draft in a letter to RBS if they stick with this line and impose charges on your current account for defaulting on direct debits to the loan account.

 

I 'thought' S.59 precluded the use of such terms?

 

Sorry, meant to add; it was the 3rd jpg attachment above. Paragraph 3 'declaration and authorisation' refers to other documents

 

Thanks

 

Gez

Edited by gezwee

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Why do RBS rely upon a term refering to pre-contract information implying it forms part of a fixed sum agreement?

 

If they have done this, then they are admitting that a full agreement, signed, should be in place post contract. Not an application.

 

Mine..... which is an application from Aug 2007 states something along the lines of 'that by signing this document you are confirming you have read and agree to the terms contained within the pre-contract information'

 

Have had some luck with mine but...... what do you draft in a letter to RBS if they stick with this line and impose charges on your current account for defaulting on direct debits to the loan account.

 

As Cerberusalert's letter above. If you have sent that, then you can adapt letter below. However they ignore long letters just as eficiently as short ones.

 

I 'thought' S.59 precluded the use of such terms?

 

Sorry, meant to add; it was the 3rd jpg attachment above. Paragraph 3 'declaration and authorisation' refers to other documents

 

Thanks

 

Gez

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an application form which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974. I have to date only received terms and conditions from yourselves.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

  • You may not ask for payment against this account.
  • I am not obliged to offer any payment against this account.
  • You cannot register any data with a third party.
  • You cannot take any enforcement action, including registering Defaults.
  • You cannot pass the account on to a third party for collection.
  • You cannot sell the account.

What is a true copy:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

 

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Update after 9 months...

 

Has been to Triton>>>Newman>>> and now Moorcroft sitting with Midas legal team for the past few weeks.

 

Hopefully get some mail this week :D

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If it carries on much longer it'll be Statute Barred anyway. ;)


Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

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Has been to Triton>>>Newman>>> and now Moorcroft sitting with Midas legal team for the past few weeks.

 

 

 

Nothing to worry about there then.

 

David

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Nothing to worry about there then.

 

All quiet on the western front...

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If it carries on much longer it'll be Statute Barred anyway. ;)

 

Few more years to go for SB to kick in... my how time flys!

 

Wish all my defaults were on the same month and same year!

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moorcroft wrote last week chasing...

Sent Morecrap another letter to get lost and to = take formal notice that other than a summons, or an appropriate response to my complaint indicating the immediate closure, if they contact me again on this matter then I will invoice moorcroft £35.00 administration fee for my time-consuming response.

 

Letter arrived today acknowledging my letter (& terms) and everything is on hold again while they investigate...

Edited by Jameson78
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