Dissecting the Manchester Test Case....

[seriously fed up]

Agreed 100%.......................but the slimey barstewrds will still try and say that a stamp (of any kind, date or otherwise, ANYWHERE) would signify acceptance of contract and be a (for want of better words) a proxy signature.

 

I am with you 100% but I dont want to raise false hopes in people for a fruitless exercise.

 

I have 2 CC agreements that have neither ANY prescribed terms or creditor signatures, and I am goading and pushing them to take me to court....no joy so far.

 

Dave

 

I think this can be traced back to my post #429 above, where, on having a read through Manchester (again :-|) I came across this at para 177 and reads (quote)

 

1. According to HSBC, p197 is a reconstituted application form. I referred to it above in the context of Issues 1 and 2. The assumed facts here are as follows:
   (1) Ms Carey signed a form which contained, among other things, the entries at p197 including the specific reference to being bound by "the terms and conditions attached"; that form did not itself have the Prescribed Terms stated on the front or the reverse;
   (2) The form (referred to as "a signature page" in the WS from Alan Burden dated 3 December 2009) would have been produced with Ms Carey's details already on, for her to sign once her application, already made, had been approved;
   (3) At the same time as the form was produced electronically, the relevant terms and conditions (including the Prescribed Terms and information) would have been printed off and physically attached to the form by a staple;"

   
   

This says to me that there are three stages - or should be three.

The first is for the prospective debtor to send off the first form ("a form" - para 1). This is received by the prospective creditor who does due diligence (or not) and decides if a card is going to be issued. If a card is to be issued then another form ("the form" - see para 2) is issued "with (IN THIS CASE) Ms Carey's details already on". Given that the prospective debtor's details would be on this form, how could it be the first one (unless its one of these "you have been pre-selected" jobs). This is signed by the creditor and sent to the debtor for their signature, along with a copy of the T&Cs (including prescribed terms - see para 3).

All of that seems fine to me - indeed in my understanding of contract law and also reading the relevant regs of the CCA, its always seemed to me that this is how it was meant to be. But how many of us have ever gone through this two stage process for a credit card? I honestly dont remember doing it one time. You fill out "a form" and if they like you a credit card arrives. Is this not everyone's experience. Or am i getting this wrong somewhere?

Put another way, have the banks foreshortened a procedure set out in statutory law and are now reaping the whirlwind?

[Josie8]

I think this can be traced back to my post #429 above, where, on having a read through Manchester (again :-|) I came across this at para 177 and reads (quote)

 

1. According to HSBC, p197 is a reconstituted application form. I referred to it above in the context of Issues 1 and 2. The assumed facts here are as follows:
   
   (1) Ms Carey signed a form which contained, among other things, the entries at p197 including the specific reference to being bound by "the terms and conditions attached"; that form did not itself have the Prescribed Terms stated on the front or the reverse;
   
   
   (2) The form (referred to as "a signature page" in the WS from Alan Burden dated 3 December 2009) would have been produced with Ms Carey's details already on, for her to sign once her application, already made, had been approved;
   
   
   (3) At the same time as the form was produced electronically, the relevant terms and conditions (including the Prescribed Terms and information) would have been printed off and physically attached to the form by a staple;"
   
   

   
   

This says to me that there are three stages - or should be three.

The first is for the prospective debtor to send off the first form ("a form" - para 1). This is received by the prospective creditor who does due diligence (or not) and decides if a card is going to be issued. If a card is to be issued then another form ("the form" - see para 2) is issued "with (IN THIS CASE) Ms Carey's details already on". Given that the prospective debtor's details would be on this form, how could it be the first one (unless its one of these "you have been pre-selected" jobs). This is signed by the creditor and sent to the debtor for their signature, along with a copy of the T&Cs (including prescribed terms - see para 3).

All of that seems fine to me - indeed in my understanding of contract law and also reading the relevant regs of the CCA, its always seemed to me that this is how it was meant to be. But how many of us have ever gone through this two stage process for a credit card? I honestly dont remember doing it one time. You fill out "a form" and if they like you a credit card arrives. Is this not everyone's experience. Or am i getting this wrong somewhere?

Put another way, have the banks foreshortened a procedure set out in statutory law and are now reaping the whirlwind?

 

 

Part of the assumed facts for HSBC was that Ms Carey signed the application form in the bank branch. so all documentation was allegedly together.

 

I would remind you that this case is proceeding to trial as the assumed facts bear little resemblance to the true facts. Ms Carey never signed any application form at all.

[seriously fed up]

As George Woodcock (former General Secy of the TUC) once said "never let the facts get in the way of a good argument.

My point is not whether or not Ms Carey signed anything. My point IS that Waksman seems to me to be referring to a three stage process for the issue of a card, which seems to me to be consistent with the law of contract and the processes described in the 1983 regs. I THINK I am right in saying that personally I have never experienced this, and my question is or questions are

 

1. have the banks foreshortened the procedure that should have been followed?
   
2. what are the consequences of this if they have?
   

Does anyone have any views on this? Or is this the wrong tree I am barking up?

[Josie8]

As George Woodcock (former General Secy of the TUC) once said "never let the facts get in the way of a good argument.

My point is not whether or not Ms Carey signed anything. My point IS that Waksman seems to me to be referring to a three stage process for the issue of a card, which seems to me to be consistent with the law of contract and the processes described in the 1983 regs. I THINK I am right in saying that personally I have never experienced this, and my question is or questions are

 

1. have the banks foreshortened the procedure that should have been followed?
   
2. what are the consequences of this if they have?
   

Does anyone have any views on this? Or is this the wrong tree I am barking up?

 

 

Yes your interpretation is wrong.

 

The assumed facts in Carey were that the Prescibed terms were in the Terms andConditions which were physically arttached to the form at the time of signature.

[seriously fed up]

so, according to the assumed facts, she signed only ONE form. So Para 1 and 2 are referring to the same form? In that case why does it say in para 2 "The form (referred to as "a signature page" in the WS from Alan Burden dated 3 December 2009) would have been produced with Ms Carey's details already on, for her to sign once her application, already made, had been approved;"

If her application "already made" had already been approved, how can there only be one form? There has to be two, doesnt there?

Please understand, I am not entering into whether Ms Carey signed anything at all - I dont know. Its that Waksman seems to me to be describing a process involving two forms - and application form (para 1) and an agreement form (para 2). If this is the case, then it would seem to me that the banks have foreshortened a legal process and I am interested, if this is the case, in what the consequences of this might be? Moreover, its a process that reminds of the 1983 regs

[Josie8]

so, according to the assumed facts, she signed only ONE form. So Para 1 and 2 are referring to the same form? In that case why does it say in para 2 "The form (referred to as "a signature page" in the WS from Alan Burden dated 3 December 2009) would have been produced with Ms Carey's details already on, for her to sign once her application, already made, had been approved;"

If her application "already made" had already been approved, how can there only be one form? There has to be two, doesnt there?

Please understand, I am not entering into whether Ms Carey signed anything at all - I dont know. Its that Waksman seems to me to be describing a process involving two forms - and application form (para 1) and an agreement form (para 2). If this is the case, then it would seem to me that the banks have foreshortened a legal process and I am interested, if this is the case, in what the consequences of this might be? Moreover, its a process that reminds of the 1983 regs

 

Becuase it was allegedly signed by her in the branch with the bank manager who was printing off the form in front of her at the time.

[Josie8]

It is important that you try and understand that the ruling in relation to the assumed facts relates pureely to those assumed facts only

[seriously fed up]

Josie, while my sympathy is with Ms Carey, my interest for the purpose of this discussion is not. Her case seems to me to illustrate another, wider point, which is the process the banks should have followed for a properly executed agreement. It was particularly interesting because it seemed to be an example of a process I had set out in an earlier thread I had tried to start back in July (http://www.consumeractiongroup.co.uk/forum/general/211210-consumer-credit-act-regs.html).This was so interesting that no one replied. But basically, what I was suggesting there were two things

 

1. the 1983 regs set out a very defined format for a binding credit agreement - many terms defined that should PRECEDE the debtor's sig
   
2. it seemed to me on reading this, that no way was a standard application form going to satisfy this - for one thing the sig precedes almost all the terms that it is supposed to follow. Therefore the application form was exactly that - it was an application. If the application was accepted then the agreement - with the t&cs set out as required by the regs attached (eg stapled) and signed by the creditor - would be sent out to the debtor for them to sign.
   

why would they not do this - well it would extend the process/ some potential cardholders might not send back the second form etc - ie just greed.

But my point was that this section of theWaksman's judgement recalled this point for me, and seemed to be consistent with that point of view of (1) an application, to be followed by (2) an executed agreement with all the T&Cs etc

[lilly white]

Josie, while my sympathy is with Ms Carey, my interest for the purpose of this discussion is not. Her case seems to me to illustrate another, wider point, which is the process the banks should have followed for a properly executed agreement. It was particularly interesting because it seemed to be an example of a process I had set out in an earlier thread I had tried to start back in July (http://www.consumeractiongroup.co.uk/forum/general/211210-consumer-credit-act-regs.html).This was so interesting that no one replied. But basically, what I was suggesting there were two things

 

1. the 1983 regs set out a very defined format for a binding credit agreement - many terms defined that should PRECEDE the debtor's sig
   
2. it seemed to me on reading this, that no way was a standard application form going to satisfy this - for one thing the sig precedes almost all the terms that it is supposed to follow. Therefore the application form was exactly that - it was an application. If the application was accepted then the agreement - with the t&cs set out as required by the regs attached (eg stapled) and signed by the creditor - would be sent out to the debtor for them to sign.
   

why would they not do this - well it would extend the process/ some potential cardholders might not send back the second form etc - ie just greed.

But my point was that this section of theWaksman's judgement recalled this point for me, and seemed to be consistent with that point of view of (1) an application, to be followed by (2) an executed agreement with all the T&Cs etc

 

i do agreed.

 

in general terms we send the application they do not send the CCA for us to sign.

 

that is in the main the problem/

[lilly white]

Therefore we do not keep the application form or copy because we send it to the lender.

 

If only we where aware

[angry cat]

But, some kept photocopies of the originals...

[lilly white]

ac

 

thank god for that.

 

 

kind regards lilly

[spartathisis]

Not being legally minded, but when you take out an agreement are you not supposed to receive a copy? My ex has just remortgaged, she applied, they did the checks required, they sent the agreement to for her to sign and then returned a copy to her, job done. This does seem to be the way it should be, all mine are app forms that say at the top of the form "credit card agreement regulated by the CCA 1974", but no prescribed terms on any of them.

 

There was no copy for me to keep as they were application forms.

[silverfox1961]

I know from personal experience what happens.

 

I applied for a credit card in 2000 and was accepted but what they did was to send me the card along with two copies of the agreement. One for me to keep and one to sign and send back. Unfortunately () I forgot to sign and send it back.

This has now bitten the OC in the bum as they cannot supply me an agreement as I didn't sign one. Will they admit it? (rhetorical question)

[seriously fed up]

But didnt you sign the application, even if you didnt sign and send back the agreement they sent you with the card? If you did sign an application - but NOT the agreement - then Spartathisis post applies.

Edited January 10, 2010 by seriously fed up

[lilly white]

yes yes we are right

 

1 the application 2 the cca.

 

however the banks just want you used to them and make their profits.

 

 

do not forget the mark up in credit cards is big money also they charge the suppliers.

 

win win for them however they just do not understand the cca 1974, or want to, as most judges do not.

 

lilly

[Peterbard]

All very true, however if there was no place for the OC to sign it, rather than a missing signature, then it can be argued that that document was never intended to become a regulated agreement owing to the omision of the creditor signature box. That puts it firmly as a pre contract document.

 

 

HI

Unfortunately unexecuted hs the sme meaning as improperly executed onthe CCA it is only a default under section65. lookup definitions under unexecuted agreementer

 

Pet

[seriously fed up]

So has anyone tried this one in court? Or with lenders? I would guess you have Silverfox.

Re the profitability of credit cards, you are spot on. But the other factor was the rush for growth. Working through two steps TOOK LONGER.

[CCAMAN]

I have been reading this and other forums with interest regarding the Manchester Test Cases and the matter of a reconstituted agreement. I have a situation with BOS whereby they eventually produced a digitised copy of the alleged signed agreement but unable to produce a copy of the original T's & Cs. To cut a long story short having been been messed around by a CMC I have a solicitor dealing with this matter due to defects in some of the prescribed terms and in the meantime BOS have at long last replied to my various letters-having issued a default notice first stating "Have as yet been unable to supply details of the reconstituted agreement" and "While we try to locate the full original agreement we will not be seeking to enforce the agreement"-having stated to FOS several months ago that they could not produce the original terms and conditions-The alleged agreement was made in 1986. My solicitor told me the following and this is reinforced by extracts from the rulings in the Manchester test cases that "if an agreement has been subsequently varied by the lender, then the lender is obliged to supply a copy of both the original agreement as well as the current one"-there is no reference here to any "reconstituted agreement"-In my particular case the agreement has been varied on numerous occaisions. I imagine most credit card agreements have been varied, hence the lender must produce a copy of the original. I would welcome any comments of my understanding of this.

[silverfox1961]

So has anyone tried this one in court? Or with lenders? I would guess you have Silverfox.

 

Not tried it in court but the lender (CAP1) are long over the horizon

[angry cat]

I have been reading this and other forums with interest regarding the Manchester Test Cases and the matter of a reconstituted agreement. I have a situation with BOS whereby they eventually produced a digitised copy of the alleged signed agreement but unable to produce a copy of the original T's & Cs. To cut a long story short having been been messed around by a CMC I have a solicitor dealing with this matter due to defects in some of the prescribed terms and in the meantime BOS have at long last replied to my various letters-having issued a default notice first stating "Have as yet been unable to supply details of the reconstituted agreement" and "While we try to locate the full original agreement we will not be seeking to enforce the agreement"-having stated to FOS several months ago that they could not produce the original terms and conditions-The alleged agreement was made in 1986. My solicitor told me the following and this is reinforced by extracts from the rulings in the Manchester test cases that "if an agreement has been subsequently varied by the lender, then the lender is obliged to supply a copy of both the original agreement as well as the current one"-there is no reference here to any "reconstituted agreement"-In my particular case the agreement has been varied on numerous occaisions. I imagine most credit card agreements have been varied, hence the lender must produce a copy of the original. I would welcome any comments of my understanding of this.

 

Reg 7 of the Cancellation Notices and Copies of Documents Regulations 1983.

[CCAMAN]

Reg 7 of the Cancellation Notices and Copies of Documents Regulations 1983.

Thanks-I should have mentioned that whereby they can leave out the signature and date etc.

[jason_mnm]

Can u guys kindly advise me on my case :

http://www.consumeractiongroup.co.uk/forum/mbna/239030-mbna-reston-threating-court-5.html

 

At present both MBNA and Restons asking for my signature to honour my CCA request and Subject access request. I am scared to give them my signature as these guys have spohisticated IT gadgets which can easily copy my signature and paste it on their dodgy agreements.. Please advise what should I do...

[basa48]

I'm interested what RBS are going to do in my case.

 

I have a CCJ against them for a small sum (under £500) which was issued Aug 2009. I haven't chased payment, but recently I wrote too them threatening a warrant and they have passed it to their legal dept for 'attention'.

 

Methinks they might be a bit late for a set aside.

[basa48]

Can u guys kindly advise me on my case :

http://www.consumeractiongroup.co.uk/forum/mbna/239030-mbna-reston-threating-court-5.html

 

At present both MBNA and Restons asking for my signature to honour my CCA request and Subject access request. I am scared to give them my signature as these guys have spohisticated IT gadgets which can easily copy my signature and paste it on their dodgy agreements.. Please advise what should I do...

 

I normally used a 'modified' sig. - one you can identify but also prove is not your usual. I also usually sign over the date, just to make it even more difficult.;-)