Do the prescribed terms need to be within the signed CCA?

[Leightonx1]

Hello Everyone,

 

Am I right in thinking that the prescribed terms have to be within the signed CCA to make it enforceable in a court? Providing separate (unsigned) terms and conditions would not be acceptable would it?

 

Bit of back story...

 

The DCA sent me an 'application form' with no prescribed terms but it was signed, they even accepted when I questioned it's enforceability that due to it having none of the pre-described terms within the signed document that they agreed it was unenforceable. Several months later they sent me the same 'application form' again this time with two separate sets of T&C (unsigned) and crudely copied. With the advice of the good people on here it was clear they still had nothing and so the sega has continued for over two years now with letters back and forth, about three months ago all went quiet.

 

Until today I received a long winded letter basically saying that the T&C did not have to be within the signed 'application form' to make it enforceable. I think I already know the answer, but this isn't correct is it?

[postggj]

What Rollocks

 

Perscribed Terms Have To Be Within The Four Corners Of The Agreement

 

May I Ask What Agreement This Is

[cerberusalert]

Until today I received a long winded letter basically saying that the T&C did not have to be within the signed 'application form' to make it enforceable.

The T&Cs don't, but the prescribed terms must.

[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.

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 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

[postggj]

PLEASE NOTE DUE TO RECENT LEGAL CASES THIS BELOW IS BEING REVIEWED.. 7th January 2010

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

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

[Leightonx1]

Hi, thank you all for your fast replies,

 

It's in relation to a Halifax CC debt circa 2003. Last Acknowledged payment was 2006.

 

What they sent me was an application form (even said so on the top), it has my signature but no pre-described terms at all, I'm still yet to see any document containing the pre-described baring my signature. The DCA seems to think that by proving statements and separate T&C (titled conditions of use) that that is sufficient enough to make what they have enforceable.

 

Here's some of the rubbish they have written in the letter;

 

1) It is our understanding that when you applied for a CC with Halifax PLC, it is likely that you would have received a copy of agreement when each card was issued, if not before and consequently would have had every opportunity to raise any issues in relation to your agreement blah blah blah

 

2)The copy of agreement may refer to the prescribed terms for the above referenced account; however it is sufficient for you to be provided with a copy of the full terms and conditions upon signing the agreement (so they are saying the signed application for with the separate T&C's is enough to make it enforceable).

 

3) The copy of agreement that has been supplied to you was the original application form from you signed with Halifax PLC when you applied for one of their CC. The document operates as an application for a CC which when accepted becomes a binding agreement.

 

4) In addition to this, the documents you requested under the Consumer Credit Act 1974 do not need to be provided on a single piece of paper and furthermore there does not need to be a physical connection between several pieces of paper documents to constitute a single agreement.

 

They say they have once again passed it back to their collection dept, what should I do now?

 

Btw this is the only letter they have EVER sent me recorded, all my letters have always been recorded and I made sure they knew that.

[postggj]

In Point 4

 

They Are Playing On Words

 

The Only Exception To This Is If A Seperate Document Is A Follow On And Marked As Such

 

Eg

 

0001

002

003

 

Etc Etc

 

Never Seen One Of Those Yet

 

there Has To Be A Physical Connection BETWEEN THE DOCUMENTS AS STATED

 

Cretins

[postggj]

7 Guests

 

I Have That Effect

 

Must Want My Body

[cerberusalert]

Must Want My Body

Maybe just your head.

[postggj]

Off With His Head

 

Well Crappy Quest Are Wishing That At The Moment

[Guest HeftyHippo]

remember to differentiate between the general terms and conditions and the prescribed terms ie those required by the CCA