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Tesco Bank CCA - is it all there?


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hi,

not sure if this is correct place for this one, if not i'd be grateful if someone could relocate for me.

after cca request to tesco bank, OH received attached docs. at first glance, it looked like the application form with t+c's were not sufficient to make it enforceable, then i read pg3 which they allege is a copy of the orig cca although no signatures, default charges, etc and OH cant recall ever receiving.

i'd appreciate if someone more experienced / knowledgeable could have a look please and let me know what you think.

cheers

SH :???:

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It is what it says an application which contains non of the prescribed terms. The T&Cs are front and back of a trifold leaflet which is not part of the original CCA i.e the reverse. You could send this in reply;

 

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 and the default notice is non compliant, 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

Anthrax alert at debt collectors caused by box of doughnuts

 

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thanks cerberusalert,

 

letter sent off.

 

can you tell me whether the actual amount of a default or other charges must be stated in the agreement as part of the prescribed terms, i see that most cca's list a number of situations where (default) charges will be applied without actually stating what the individual amounts are?

 

cheers

 

SH :???:

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can you tell me whether the actual amount of a default or other charges must be stated in the agreement as part of the prescribed terms,
They should be in the T&Cs.

Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

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so would i be correct in thinking that they do form part of the prescribed terms then and if not included within a properly executed agreement they would not be enforceable?

on the other hand, if they were included in a properly executed agreement, could they still be challenged as unlawful and reclaimed?

 

apologies if i'm going on a bit about this one, just trying to get my head around where they fit in

 

SH

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Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

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hi P1,

 

i,ve already challenged the enforceability of the CCA, which amonst other things, didnt show any default charge types / sums on the alleged agreement.

 

what im trying to determine is whether, if any types of 'defaults' had been listed (ie for late payment, etc), and assuming all other key financial terms were correctly stated, would the omission of the sum to be charged for each instance of default be sufficient on its own to render an agreement unenforceable?

 

hope you can shed some light on this for me.

 

SH:???:

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hi P1,

 

i,ve already challenged the enforceability of the CCA, which amonst other things, didnt show any default charge types / sums on the alleged agreement.

 

what im trying to determine is whether, if any types of 'defaults' had been listed (ie for late payment, etc), and assuming all other key financial terms were correctly stated, would the omission of the sum to be charged for each instance of default be sufficient on its own to render an agreement unenforceable?

 

hope you can shed some light on this for me.

 

SH:???:

 

The form you scanned up looks like an aplication to me... I have one similar and am war with Triton as we speak. It's unenforceable because the key terms are nowhere in sight on the form they've sent you and regardless of whether they've enclosed t&c's, there's nothing to link these to the doc. that you allegedly signed.... they are completely seperate from the application anyway.

 

This is why I'm wondering what you're querying because the whole doc. is unenforceable but you seem to be focussing on one aspect only.... the cost of a default.

 

Hope that makes things clearer... :-)

 

When you challenged it, what did you challenge and what did they respond with? Was this in writing?

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hi P1,

it was an an application form with no prescribed terms so i sent the 'in dispute' letter back to OC, haven't heard anything back yet from them, however did receive a final notice (in red!) from DCA (wescot) demanding payment in full - letter quickly despatched asking them to explain their actions.

 

apologies if i've confused the issue with query re. default sums, i'm looking at another agreement for OH which looks as if its all there except for default sums.

 

cheers

 

SH

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hi P1,

it was an an application form with no prescribed terms so i sent the 'in dispute' letter back to OC, haven't heard anything back yet from them, however did receive a final notice (in red!) from DCA (wescot) demanding payment in full - letter quickly despatched asking them to explain their actions.

 

SH

 

Sounds like they got their scary crayons out to try and frighten you.... See what they respond with and update the thread then...

 

:-)

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well, i finally got a delivery (not the groceries!) from tesco, looks like a new standard template response post 'carey vs.....'

 

they appear to go to great lengths to explain why they believe they have complied with my request and conveniently omit the fact that i asked them to confirm whether they actually had a the original signed agreements... which it would appear they haven't. i've attached a copy of their reply.

is there a suitable template i can use / adapt to reply as i still believe this to be in dispute since they haven't provided a copy of original signed agreement with all of prescribed terms, nor have they confirmed that one actually exists?

 

shortly after, i also received the attached 'threatogram' from a company of solicitors (Nelson Guest & Parners), which actually looks like it was issued by wescot. now call me cynical, but if they were actually going to go down the legal path to recover the alleged full balance , why offer a discount? this letter surely has to breach some of the OFT Guidance at least (demanding full balance without a DN, requesting patyment by credit card,etc). should i reply to sols or wescot? surely this practice is illegal or highly questionable? presumably the disclaimer on back of 'threatogram' is to protect NG&P under DPA?

 

any comments or advice gratefully received

 

cheers

 

SH

scan0047.pdf

scan0046.pdf

Edited by Sare Heid
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Ok... they haven't got an Agreement but are hoping that if you swallow the Carey argument, then you'll cough up anyway. They are right in the sense that they've complied with your sec. 78 request. What they've been economical with however is the fact that they'd need an enforceable Agreement in court..... which is probably why it's been passed across to Nelson, Guest.

 

I would write back (rec. delivery) to Nelson, Guest....

 

PRESSED BUTTON BY MISTAKE.... HANG ON.... LOL!!

Edited by PriorityOne
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Sorry about that....

 

As this now seems to have been passed across to NG...., write to NG (by rec, delivery) with something like....

 

I do not acknowledge any debt to your company or to any company you claim to represent.

 

A legal request was made to Tesco for a true copy of the Consumer Credit Agreement pertaining to the account in question and to date, their only response has been a pre-contractual application form with generic terms and conditions. Therefore, until such times as you/Tesco are able to provide a properly executed and enforceable Consumer Credit Agreement, the account remains unsubstantiated, is unenforceable at law and no payments will be forthcoming to anyone. I'd be grateful if you'd now confirm whether you currently hold or have ever held a properly executed Consumer Credit Agreement in your possession and if not, to confirm this in your response (CPUTR, 1988).

 

Please note that any legal action that you may be contemplating in the continued absence of such an Agreement will be treated as both unlawful and vexatious, vigorously defended and reported to the relevant authorties, including but not limited to the Solicitors' Regulatory Authority, Office of Fair Trading, Consumer Direct and the Financial Crimes branch of HM Treasury.

 

I trust that I have now made myself abundantly clear and look forward to your written response.

:-)

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thanks P1,

 

that sounds like a good size 12 up the derriere!

 

OH had been making token payments since before we found CAG, is there any benefit in maintaining them since OH actually has written acceptance from DCA on behalf of OC, might make a difference to our defence if it ever went down legal route?

 

should i copy the letter to DCA or is it ok to assume NG&P should do this?

 

also, as they had been demending payment of balance in full, OH requested copy of the original DN some toime ago, never received anything back, do you think its worth pursuing at this stage?

 

so many question.... but the support on here is top notch, hope i can start to be of some help to others soon.

 

cheers

 

SH:-)

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As there's no enforceable CCA, Tesco have passed this on.... so there's no point in maintaining token payments because no-one seems to have the right to collect them. Tesco know they have nothing and mentioned Carey in order to un-nerve you, that's all. As for Nelson Guest... I'm not familiar with them myslef so am unsure if they're a branch of Westcot or a legit company in their own right. It certainly does no harm to copy Westcot in if you decide to but NG are the ones that wrote to you, so NG need the letter.

 

There's no point in pursuing the DN unless they come up with a CCA, which seems unlikely.

 

:-)

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not sure whether NG&P are 'in-house' legals or just lend their credentials to dca's like wescot to try and add some weight to the 'threatograms'.

 

the NG&P letter has wescot details/refs all over it, including the disclaimer on the back page.

 

i'll keep you posted.

 

SH :-)

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