Sainsbury's Credit Agreement Help

[Aqua-Sition]

Hi Folks,

 

I have now received copy of the original credit agreement which I have uploaded.

 

Can you please advise if the agreement is not legal or unenforcable.

 

If so, what are the issues.

 

In either case, what do I do next.

 

Thanks for your help.

 

 

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Edited November 19, 2009 by cerberusalert

[cerberusalert]

Can you upload them to TinyPic - Free Image Hosting, Photo Sharing & Video Hosting and copy & paste the URLs back here? The thumbnails are a bit too small to read.

[cerberusalert]

Was image 1 & 2 both part of the same document page?

[Aqua-Sition]

Yes, the terms and conditions were on a separate page - I did notice however that no where did it state that I could cancel the agreement or how to do it

[cerberusalert]

Also, did you sign this on their premises or was it delivered express delivery for you to sign at home?

[Aqua-Sition]

It was delivered express delivery for me to sign at home

[cerberusalert]

Well, the one thing that jumps out at me is the absence of the prescribed term 'The Right To Cancel', hopefully someone else might spot something else.

 

The image that's headed 'Data Protection Act Declaration', was that part of the image above it?

[cerberusalert]

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.

 

 

The document sent purporting to be a credit agreement does not contain all 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 not all of the terms are present in the document

 

Since this document does not contain all 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, 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

[Aqua-Sition]

The Data Protection Act Declaration was part of the first page just above the signature block. The way you have posted the documents is exactly right - terms and conditions on a separate sheet.

 

Thanks for your help - if it is accepted that the right to cancel is missing does this mean that it was not a properly executed agreement and therefore not enforcable or does it mean that it is an illegal agreement?

[Aqua-Sition]

Sorry was too quick off the mark... will send letter.

 

Thanks a million.

[Aqua-Sition]

Hi again,

 

Having looked into this agreement the right to cancel is missing. However, I dont think that it is/was a cancellable agreement as there were no face to face meetings with the creditor or agent, the agreement was signed at my home and it does not fall into a restricted use agreement.

 

Therefore, I assume all is correct and that it is enforceable?

[charlie*]

I see Cerebusalert implies that this agreement is suspect because it does not carry the "Right to Cancel" clause...

I also see that Aqua-sition suggests, for his own reasons that it is enforceable....

 

I too have this problem with my son 's Sainsbury loan... also a Tesco loan ...

 

I am not doubting Cerebus but, since one opinion conflicts with another, could some kind soul shed some more light here?

 

These two agreements do bother me and no doubt Aqua-Sition too.

 

Hope everyone had a damned good Xmas and I would like to wish us all a

Happy, Healthy and Successful 2010.

 

charlie

[cerberusalert]

Consumer Credit Act and Your Consumer Rights | Consumer Information

 

Cooling off and your right to cancel

 

You will benefit from a cooling off period if the credit agreement was made in one of the following ways:

For agreements signed away from the creditor’s normal business premises – i.e. at your home, place of work or at an exhibition stand

For agreements made at a distance (this also includes banking, insurance, pensions and investments)

For financial products and services marketed by an intermediary or broker (even where this is face to face)

 

For agreements which fall under (1), you will have a cooling off period of 5 days, which begins from the time you receive the second copy of the agreement (containing the cancellation form). For contracts which fall under (2) and (3), you benefit from a 14 day cooling off period (30 days for life insurance and personal pensions). Unlike the cooling off period for goods bought under the Distance Selling Regulations (DSRs), the creditor may make a reasonable charge for any service (such as insurance cover) which was operating during this time.

 

There are specific guidelines on how you should cancel the contract, which must be notified to you by the creditor before or immediately after the contract is made. If the creditor does not make this information available to you, then your cooling off period will not begin until this happens.

[postggj]

agreements need a cooling off period as stated

 

the exception to this would be an agreement signed on trade premises

[charlie*]

Thankyou both

[Aqua-Sition]

Ok thanks guys