Is this application form also a valid CCA? URGENT

[shaaarn]

Can someone with more experience than me (that will be easy) have a look at this and confirm as to whether or not this can be classed as meeting my recent CCA request.

 

Lloyds have sent this along with a number of pages of t&c's.

 

 

Id really appreciate any help please.

[supasnooper]

It could do, depending on the other docs they have sent you.

 

Have a look at these links which may help you understand the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

Consumer Credit Agreements

[shaaarn]

Bump?

[unclebulgaria67]

Yes they have sent you the application that would have been used at the time. You would have signed the form to confirm that you wanted to be bound by the CCA 1974.

 

What stage are you at the moment with this? Have you defaulted on payment? If so, who is the account with at the moment ?

 

If you were hoping for someone to say, that the application was not an enforceable document, you are out of luck. As if life would ever be that simple.

 

Suggest the thread is moved to the general debt collection forum, so that the OP can have a discussion about what they should do next.

[Tonster]

Hi All

 

The prescribed terms are missing from the document they have sent you on here (APR, credit limit, repayment terms) it would depend on what if anything else they sent and whether the prescribed terms were on the back and if they could prove it. The prescribed terms need to be contained within the sig doc. Any additional T&C's that are sent that were not part of the signature document do not make this app form enforecable as they are not signed by the debtor.

 

Tonster

[shaaarn]

Thanks Tonster the other documents have no signature on and appear to be from other documentation.

 

For your info Unclubulgaria, moorcroft are threatening legal action with this account.

[Huff&Puff]

I agree with Tonster, on the face of it that is completely unenforceable. And the mere fact that it is with Moorcroft means that it is almost certainly unenforceable, that's all they deal with

[unclebulgaria67]

Thanks Tonster the other documents have no signature on and appear to be from other documentation.

 

For your info Unclubulgaria, moorcroft are threatening legal action with this account.

 

If you are not paying, which I guess you are not if they are threatening legal action, I would tend to ignore them for the minute.

 

In the unlikely event that they decide to issue a court claim against you, then you would hold them to strict proof, asking for them to submit all the required enforceable paperwork.

 

I doubt Moorcroft actually own the debt, they probably are just the assignees of the debt. If they wanted to try for a CCJ, they would need the help of Lloyds TSB. This is where the DCA's have problems, because the original creditors, particularly banks don't help them much, unless the debt is for a large amount.

[Tonster]

Thanks Tonster the other documents have no signature on and appear to be from other documentation.

 

For your info Unclubulgaria, moorcroft are threatening legal action with this account.

 

 

Hi Again

 

I have 2 accounts with Moorcroft (one is a Lloyds CC) and I have at least 5 letters on each account threatening legal action usually headed 'Notice of Intended Litigation' but they are full of we may, we might etc....

 

Lloyds/Moorcroft have provided nothing with my signature on at all , just a load of generic junk and it's 15 months since the original CCA request!! I gave up replying to the Moorcroft letters and they gave up calling a while ago and just send letters every so often.

[Blondie40]

Did you received a default notice?

 

Have you been contacted by either MHA Collections or BLS (LTSB in-house Collections)?

 

or have SCM (LTSB solictors) been writing demanding payment in full?

 

This is the usual pattern before passing onto external DCA.

[Blondie40]

Who's driving that volvo as they keep following me?

[Blondie40]

Have they supplied the reverse as in YOUR PERSONAL DATE section it says "on the back of this form" also "terms overleaf" mentioned in paragraph at top under YOUR CREDIT CARD APPLICATION AND AGREEMENT. Usually LTSB app forms have the agreement including details of APR etc on the reverse and you sign both front and back.

 

Also mentions full conditions set out in the document labelled "customer copy". Do you recall being given this?

 

Did you apply for this in a LTSB branch? As it mentions Employee ID Number and Submitting Branch sort code.

[newbloke]

what you have is a precontractual application, which puports to bind you into an agreement, but gives the creditor the option of not becoming part of the agreement, as they have the option of rejecting your application following credit checks, this document is therefore void under section 59.a signed application for a card is required by sec 51 where there is no agreement already in place, and is signed in respect of part 4 of the act, seeking business and quotations. entry into an agreement takes place in part 5 of the act. here is section 51, part 4, sec59, and sec 60 which relates to signing of an agreement, not an application.

Part IV

Seeking Business

Advertising

51 Prohibition of unsolicited credit-tokens

(1) It is an offence to give a person a credit-token if he has not asked for it.

(2) To comply with subsection (1) a request must be contained in a document signed by the person making the request, unless the credit-token agreement is a small debtor-creditor-supplier agreement.

(3) Subsection (1) does not apply to the giving of a credit-token to a person—

(a) for use under a credit-token agreement already made, or

(b) in renewal or replacement of a credit-token previously accepted by him under a credit-token agreement which continues in force, whether or not varied.

Part V

Entry into Credit or Hire Agreements

Preliminary matters

59 Agreement to enter future agreement void

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations

Making the agreement

60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

(2) Regulations under subsection (1) may in particular—

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

(3) If, on an application made to the Director by a person carrying on a consumer credit business or a consumer hire business, it appears to the Director impracticable for the applicant to comply with any requirement of regulations under subsection (1) in a particular case, he may, by notice to the applicant, direct that the requirement be waived or varied in relation to such agreements, and subject to such conditions (if any), as he may specify, and this Act and the regulations shall have effect accordingly.

(4) The Director shall give a notice under subsection (3) only if he is satisfied that to do so would not prejudice the interests of debtors or hirers.

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

(2) In addition, where the agreement is one to which section 58(1) applies, it is not properly executed unless—

(a) the requirements of section 58(1) were complied with, and

(b) the unexecuted agreement was sent, for his signature, to the debtor or hirer by post not less than seven days after a copy of it was given to him under section 58(1), and

© during the consideration period, the creditor or owner refrained from approaching the debtor or hirer (whether in person, by telephone or letter, or in any other way) except in response to a specific request made by the debtor or hirer after the beginning of the consideration period, and

(d) no notice of withdrawal by the debtor or hirer was received by the creditor or owner before the sending of the unexecuted agreement.

(3) In subsection (2)©, "the consideration period" means the period beginning with the giving of the copy under section 58(1) and ending—

(a) at the expiry of seven days after the day on which the unexecuted agreement is sent, for his signature, to the debtor or hirer, or

(b) on its return by the debtor or hirer after signature by him,

whichever first occurs.

(4) Where the debtor or hirer is a partnership or an unincorporated body of persons

 

hope this helps

[Blondie40]

It is important to know what is on the reverse however as OP may find the reverse is the agreement which contains the required prescribed terms and may have the line that "once this application is accepted by us this document becomes the executed agreement between parties".

 

Without seeing the reverse you'll not know.

 

The document posted does say Your Credit card application and agreement.

[newbloke]

its void under sec 59

[Blondie40]

Whilst I agree with you on this, if the Application Form is devoid of all Prescribed Terms, then it is indeed a pre-contractual document and void due to s59.

 

However the usual argument (from them) is that the Prescribed Terms were on the back, and that this forms the agreement. With LTSB forms like this the reverse may have all the required prescribed terms with signature boxes (1 for applicant and 1 for LTSB).

 

As I have said without seeing the reverse you can not say for certain that it is unenforceable. And the document posted does make reference to terms overleaf.

[Blondie40]

Of course if s59 applies the OP would have to work how much they had spent on the card and the amount of interest they had paid during the lifetime of the agreement.

 

If the court rules that s59 applies then the only course open to the court would be to return parties to the position they would have been in prior to the agreement having taken place.

 

If the amount the cardholder has charged to the card is the higher than the amount of interest then the cardholder would be required to repay the difference.

 

If the amount of interest charged by the card provider was higher than the amount charged to the card by the card holder, then the card provider would have to repay the difference.

 

I am not aware of anyone having used this argument in court and won. But would be very surprised if a creditor would issue proceedings when all they had was an application form to which s59 applied and which could see them having to refund money to a defendant. Of course I could be wrong about that.

[Blondie40]

One matter that does concern me and the OP would need to confirm this is whether the application was made in a branch of LTSB, the document posted has space for an employee id number and submitting branch source code at both top and bottom of form and OP has blacked out the section at the bottom.

 

If applied for in branch it could well be that the credit checking process took place at the time the application was made and the application approved. If so the s63 of CCA may apply:

 

63 Duty to supply copy of executed agreement

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

[newbloke]

here is the proof of the pudding, last post is exactly what you have got, an application, have a good day !

http://www.consumeractiongroup.co.uk/forum/barclaycard/166878-my-mrs-barclaycard-2.html

[Blondie40]

here is the proof of the pudding, last post is exactly what you have got, an application, have a good day !

http://www.consumeractiongroup.co.uk/forum/barclaycard/166878-my-mrs-barclaycard-2.html

 

Have read through the thread and looked at the document in the last post.

 

The document post by paulwlton clears says Barclaycard Application

 

OP's document says Your Credit Card application and agreement immediately making reference to an agreement.

 

The document posted by paulwlton does not contain the prescribed terms or mention any T&Cs and which would raised in the defence against the claim (and some of it is difficult to read).

 

However OP's document makes reference to T&Cs overleaf and whilst repeating myself, until you see those you can not with confidence state it is unenforceable.

 

From the LTSB documents I have seen like these, the reverse is the agreement, whether that contains the prescribed terms remains to be seen.

 

Can only say that I am not sure exactly how a Barclaycard Application is the "proof of the pudding" in a matter concerning a LTSB application

 

Having a very good day, thank you.

B40.

[Tonster]

I would agree as I mentioned earlier that it depends on what is on the back of the agreement but you can bet your last penny that Lloyds don't have the back of the agreement because they only copied the front, further should it come to court you should insist on the original being produced as it's a statutory document and they should keep it for 6 years from termination and you can bet they certainly don't have that.

 

That's why they send a load of generic t&c's and say 'they were on the back' but they need to prove it.

[Blondie40]

I would agree as I mentioned earlier that it depends on what is on the back of the agreement but you can bet your last penny that Lloyds don't have the back of the agreement because they only copied the front, further should it come to court you should insist on the original being produced as it's a statutory document and they should keep it for 6 years from termination and you can bet they certainly don't have that.

 

That's why they send a load of generic t&c's and say 'they were on the back' but they need to prove it.

 

Unlikely they will have kept it, even if its a statutory document and probably very likely they will have only scanned the front.

 

However need to establish if application was made in a branch, if so s63 applies which can change things.

[newbloke]

thats the whole point, its an application which binds you into an agreement, but allows them not to be, hence void by sec 59, how can it be an agreement if antecedent negotiations have not taken place and they have not informed you of the amount rate and charge for credit ?

[shaaarn]

Wow!

 

Thanks for all your thoughts folks. I apologise for not keeping up with this over the weekend but Ive been laid up with a dodgy back. Will scan the back page but I can confirm it has no signature and does appear to be a different document due to its shape and format. I will scan it though and post it (once Im back at work).

 

I do think this was filled out in the branch though :o

[newbloke]

please read the barclaycard application again, and you will notice that the signature box states " this is a credit agreement regulated by the consumer credit act 1974, sign it only if you wish to be legally bound by its terms, exactly as the lloyds application that also puports to be an agreement. void sec 59, therefore of no legal value and absolutely unenforceable under sec 78, 85 where varied/modified.