CCA request

[bobdauilda]

The only thing I can see wrong with it is that there is no

 

iii) running account credit (overdrafts, credit cards) - the credit limit

 

which is in the conditions of use.

 

The signature 'stamp' of the creditor may be a bit dubious and could have been put on at any time as there is no date stamp?

 

The rest all seems to be in order even though the apr is on the opposite page to the signature.

 

Looks like it's possibly only enforceable in court under s65 of the CCA 1974?

Edited January 27, 2010 by bobdauilda

[bobdauilda]

OFT news out today

 

Press releases 2010

 

 

OFT consults on unenforceable credit agreements guidance

 

05/10 27 January 2010

The OFT has today published draft guidance for consumers and industry on the application of sections of the Consumer Credit Act 1974 (the CCA) that allow consumers to request information about their credit agreements.

 

The OFT is consulting on guidance because of concerns that some debtors are being misled into thinking that these sections can be used to get their debts written off and that some creditors are not following legal obligations to provide information to customers.

 

The draft guidance consists of a document setting out the technical legal issues for businesses and consumer advisers, and a simpler version for consumers.

 

It incorporates the findings of recent High Court cases that have clarified a number of technical issues. For example, sections 77-79 of the CCA allow a consumer to request a 'true copy' of their agreement. The High Court ruled that a true copy does not have to be a photocopy or an exact copy of the original. The lender is allowed to provide a reconstituted agreement, as long as that version is accurate and contains all the original information apart from the few exceptions that the law allows (which include the signature, signature box and date of signature).

 

The guidance also makes it clear that if a lender cannot comply with the sections - making an agreement unenforceable - then it is restricted in the debt collection activities it can undertake. Whilst lenders are able to request repayment and to record any arrears or default with a credit reference agency, the OFT considers it would be wrong to threaten court action if the lender knows that it is not possible.

 

Ray Watson, OFT director of consumer credit, said:

'There has been a great deal of confusion over the meaning of these sections with many borrowers being misled into thinking that they can get their debt written off.

 

'This guidance is to clarify the legal position and the OFT view on standards expected of the industry, and to make consumers aware that they may be at risk if they seek to use these sections to avoid paying legitimately owed debts.'

The deadline for responses to the consultation is 21 April 2010.

NOTES

1. The consultation document is available on the OFT website.

2. The recent judgment in Carey v HSBC Bank Plc [2009] EWHC 3417 can be found on the Judiciary of England and Wales website.

[nick20045]

Reading it now.

[nick20045]

Have just looked at your application form.

 

Noticed that No 2 nothing is filled in and nothing is ticked.

 

Can you confirm if box 1 has your name and address (especially if you have moved since then it MUST BE the old address) AND (very important) if they are filled in are they in your hand writing? (Do not forget, it was a manually filled in application).

 

Important correct answers. Looking at http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

 

2.21 However, the reconstituted copy must be a 'true copy' of the executed

agreement. It must therefore contain any terms and conditions which

were contained in the original, together with all the prescribed

information and statements of protection and remedies required by the

Consumer Credit (Agreements) Regulations 1983 that were set out in

the executed agreement. The creditor or owner must ensure that it gives

the terms and conditions applicable at the time the contract was

executed. It was held in Carey v HSBC Bank plc 9 that, subject to

spelling mistakes and similar discrepancies (described as 'low level

omissions'), only those matters listed in regulation 3(2) could be omitted.

The name and address at the time of execution must therefore be

included, although, as Carey explains, that can be taken from any source

available to the creditor or owner.

 

Now it continues that "as Carey explains, that can be taken from any source available to the credir or owner

 

BUT in your case it is an application form and hence, as you have filled in the application form, then it must be in your handwriting. ;)

[bobdauilda]

Nick- box 2 has been filled in by me and I erased the info in this and box 1 for privacy. Interestingly the address in box 1 is not handwritten but typed. It looks like they have amended my original.....and it's my very old address.

[nick20045]

Also: http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

 

2.31 Any other document referred to in the executed agreement

2.31 As well as a copy of the executed agreement, sections 77(1), 78(1) and

79(1) require that a copy of any document referred to in it be given to

the debtor or hirer. Commonly terms and conditions are contained in a

separate document to the executed agreement and that document is

incorporated by reference.

 

Did you get any copies of the "documents referred to" in the application form or did they just send that form and that is it?

[bobdauilda]

There weren't any 'extra conditions/documents referred to' in the application form. I know some have referred to other documents but doesn't appear to be the case in mine.... They just sent that form and an up to date set of T&Cs along with a letter saying what they have provided.

[nick20045]

Also read 3.2, 3.3, 3.4, 3.5, 3.6 and then 3.8

 

Did you get a statement?

[bobdauilda]

Have done and yes they provided the copy of the executed agreement (application form) , the up to date T&Cs and a signed recent statement of the acct. including a FAQs on the info.

[nick20045]

Nick- box 2 has been filled in by me and I erased the info in this and box 1 for privacy. Interestingly the address in box 1 is not handwritten but typed. It looks like they have amended my original.....and it's my very old address.

Strange that it has been tampered with. Does it show like it has been tampered with?

 

As far as I know any legal document (which an agreement is a legal document) if it is tampered with becomes null and void.

[bobdauilda]

Strange that it has been tampered with. Does it show like it has been tampered with?

 

As far as I know any legal document (which an agreement is a legal document) if it is tampered with becomes null and void.

 

It was 16 years ago so maybe box 1 was typed by them therefore no tampering.

[nick20045]

It was 16 years ago so maybe box 1 was typed by them therefore no tampering.

Tampering.................... modified by tipex whereby the typing may be a bit smudged due to not writing on proper paper. You hold the copy so it is you who has to check these very small details.

 

Also you say that box 2 (mr mrs name etc) you covered those. Look too neat a covering to me compared to box 1 so when I say box 2 are we talking about the same part? (The part under the big box with name and address in it).

 

IF it was typed by them and you signed it then I would take it that it is an agreement and not an application form.

[MrMauy]

OFT news out today

 

The guidance also makes it clear that if a lender cannot comply with the sections - making an agreement unenforceable - then it is restricted in the debt collection activities it can undertake. Whilst lenders are able to request repayment and to record any arrears or default with a credit reference agency, the OFT considers it would be wrong to threaten court action if the lender knows that it is not possible.

 

 

 

Am I the only person who finds the above contradictory?

How, without my signature on something saying they may share my data, are they allowed to record information with a third party?

[nick20045]

Am I the only person who finds the above contradictory?

How, without my signature on something saying they may share my data, are they allowed to record information with a third party?

Post # 20 refers. Also they may have a signature but it depends what they say on the agreement. e.g. IF it say it is for say "Tick this box if you wish us to pass on your details to recommended third parties for marketing purposes" you have only authorised them to use it for that purpose only.

 

The problem is the OFT is basing what it is saying based on the McGuffick v Royal Bank of Scotland (refered to in the draft guidance). The problem is that in that case, the bank first said they cannot find the agreement, the debtor issued a claim. Then the creditor said they had found the original agreement but could not submit as the case had started PLUS the bank had forgotten to also send a statement. So an enforceable agreement was available. Problem is the judge decided that as it had been shown that an agreement is there then can be reported to the CRAs as the debt may be unenforceable but it is still there.

 

The bank now cannot make another claim due to double jeaopardy. Also if you read the judgement even the solicitor representing the debtor claimed that it was one of the crappiest claims filed and should not be referred to as case law but to the OFT it helps them keep the banks nice and sweet so they put it in. Personally, I do not care about McGuffick. I would argue the point. Plus anyway, word is that the case is going to appeal.

[bobdauilda]

Tampering.................... modified by tipex whereby the typing may be a bit smudged due to not writing on proper paper. You hold the copy so it is you who has to check these very small details.

 

Also you say that box 2 (mr mrs name etc) you covered those. Look too neat a covering to me compared to box 1 so when I say box 2 are we talking about the same part? (The part under the big box with name and address in it).

 

IF it was typed by them and you signed it then I would take it that it is an agreement and not an application form.

 

 

Box 1 ( Your name & address) they have typed my name and old address.- presumably they sent me the application via the mail but 16 years is a long time!

Box 2 (Your personal details) I had filled in by hand and ticked the boxes etc- its neat because I took the time to erase my ticks and details.

Edited January 27, 2010 by bobdauilda

[nick20045]

An idea............

 

Write to them a letter saying that you are examining the application form that they have sent you and that you are drawing to the banks attention that you know that CPR Practice direction 16 para 7.3

 

7.3

 

Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

Considering what the law says, you are reminding them that if you dispute the document and it goes to court they will have to make the original available at court. Then ask them to confirm if they have the original.

 

Might get the letter saying yes. Might get the letter saying no. Might get a bluff letter but if you get a bluff letter then you can work out if they have it or not. :wink: IF they start about copy documents and Carey v HSBC just write back and tell them "Confirm whether you will be able to submit the original in Court. That is the law. Judge Haksman and the OFT have to abide by the Law and are not authorised to make or change the law.".

 

Sometimes, taking the bull by the horns is a good thing. Also if somebody comes along and confirms it is a fake, if they have said it is original then they have caused an Unfair relationship as they have lied to you.

[bobdauilda]

It looks like its original to me but the real question is - is the document they provided ie the 'application form' sufficient in answer to what I asked for in the paragraph in bold italics below?

If so then it looks like they are ok barring the points I mentioned earlier re their signature (going diagonally across box 7 (additional cardholder) and no credit limit mentioned.( although it says in THE CONDITIONS OF USE section 3i We will determine and notify your credit limit to you from time to time' So maybe this is ok too.)

 

 

This letter is a formal request pursuant to s.78(1) of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

Edited January 27, 2010 by bobdauilda

[nick20045]

I stand to be corrected on this, but IF the application form was typed with your name and address, it was posted to you, you read it and signed it and sent it back to them, then it does become an agreement.

 

IF it had been modified in any way, IF it did not have all the information filled in, IF the signature does not match yours then I would dispute. BUT you are saying all of them are there and genuine.

 

So once again I stand to be corrected but the procedure for an agreement is:

 

You make an application.

You send it.

It is approved and sent back to you.

You sign it and return.

 

That is an agreement. An agreement can be done of a simple A4 sheet of paper.

 

The only thing that concerns me is that it should show what you have been given as a credit limit but this can be kind of overdone by saying "it will be advised to you".

 

I gave you the link so that you can check it. http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

 

Also as far as I know there are some template copies of agreements somewhere on the database on here. Might be able to compare. http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

 

and 2006 MBNA :: MBNA 2006 picture by citizenba - Photobucket (notice that this one gives a maximum limit on the left hand side).

 

Read page 3 of this thread http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/239338-cpr-court-hearing-tomorrow-2.html

 

The other thing you can do is (I did this once for another member), check the attached. This is the CCA 2004. Look for the parts that say and [/ B] (without the spacing). (Cannot cut and paste it on here as it got removed due to copyright laws).

 

Where it is marked it shows the parts that interest you. For the original amendments you can see them on here: The Consumer Credit (Agreements) (Amendment) Regulations 2004 No. 1482

 

(I would suggest open the wordsheet and also open the link to the proper act. Then where you see the you can check for exact way it is said on the proper act........ or you can cut and paste the doc and send a pm to yourself. Then where it is with it will come up in bold.

 

If your application is 16 years old, you should be able to see if it is a true copy as in 2004 there were some major word changes on the application forms and agreements that the bank had to send to debtors.

New Microsoft Word Document (2).doc

[bobdauilda]

Wow thats one heck of a post Nick! Did the cut n paste and pm bit- Been wading my way through it and I have a lot of analysing to do along with the mbna jpegs.

 

Re the bit you wrote on the application they didn't send it back to me to sign again.

Edited January 28, 2010 by bobdauilda

[nick20045]

With the word doc, the main parts are where (if you look on the 2004 amendments) you go down to where it starts with:

 

old agreement says this. change it to say this. (it is like a table thing). IF the wording is as the old one then it is an old copy. If the wording is different and "more like" the 2004 then you have a fake.

 

e.g. If you go down to schedule 2, you will notice that in No 2 it says "All types". As from 2004 the wording "Missed payments" had to be added.

 

Quick look.......... no 17. Does the wording say:

 

THEFT, LOSS OR MISUSE OF CREDIT-TOKEN*

If your credit-token* is lost, stolen or misused by someone without your permission, you may have to pay up to £x** of any loss to the creditor. If it is misused with your permission you will probably be liable for ALL losses. You will not be liable to the creditor for losses which take place after you have told the creditor about the theft, etc [as long as you confirm this in writing within seven days]. ***[However, the credit-token* can also be used under an agreement to which this protection does not apply. As a result, there may be circumstances under which you may have to pay for all the losses to the creditor.] **** (read also the notes)

 

IF the the conditions say that then it is after 2004 copy. IF it does not say that then most probably a genuine copy.

 

As to your "mature signature" you should not say things like that. You do know that Dotty is 50 (well I guess that is where she gets her "nick" from). :D

[Dotty50]

Cheeky!

 

You know I am watching!

[bobdauilda]

Voyeur eh Dot? :o)

[bobdauilda]

Take a look at the first page again and the bit saying Credit Agreement Regulated by the Consumer credit act- it looks a little odd in terms of its position to me..... Shouldn't it be formatted to be inline with the right hand margin and not inset as it is?

[Dotty50]

Well you can see me, not like the guest!

[bobdauilda]

Well you can see me, not like the guest!

The guest is probably from 'you know where' plotting their next move against me! Paranoid? Who said that?