Cap1 & CCA return

[noomill060]

Interest rate?

 

repayment period?

 

Credit limit?

 

Signature of creditor?

 

This is an application form.

[noomill060]

There is a bit in it about have read the T&Cs, but as for as I know, this isnt a prescribed term and the CCA 1974 doesnt have anything to say about having read a separate document, other than it isnt properly executed unless all the Prescribed Terms are on the Credit Agreement.

 

This doesnt contain any prescribed term, so isnt a credit agreement.

 

The clue to what it is, is where its says "Application Form"

[noomill060]

OFT regs also say that you cant link an agreement to separate documents or information leaflets.

[noomill060]

peterbard is the expert on these- go back through this thread and read his comments about the great application form/credit agreement debate.

[un1boy]

OFT regs also say that you cant link an agreement to separate documents or information leaflets.

 

noomill - which regs? I really need this information!!!

[noomill060]

Just have a read through peterbards posts. All the ammo you need is in them.

 

The regs refered to are the OFTs. Somewhere in here I think.

 

Consumer Credit (Agreements) Regulations 1983 as amended by the 2004 Amendment Regulations

 

"If the prescribed terms are not contained within the agreement as per section 2 of the regulations then they are as far as i and as far as the law is concerned, it would be unenforceable. Tand cs are not part of the agreement they are a information sheet .

I would suggest you write to the creditors stating that you require an agreement containing within it all the terms and required by the act if none is available then the agreement was not properly executed and is unenforceable.

Reference to another source for the conditions of the agreement is unexceptable in law and also as stated by the OFT."

 

 

 

Shane, there have been several cases where Judges have stated unequivocally that in the absence of the original loan agreement the debt is

unenforceable. Unfortunately I am not at my own computer at the moment, but if you go to this site you should find cases that will convince you.

British and Irish Legal Information Institute

If you type in "unenforceable consumer credit contracts" and tick all sections,

you will be given a whole host of cases some of which will be not dissimilar

to your own. Look for McGinn v Grangewood Securities 2002 for one, where

the Judge lays it down about the non supply of the OA [paragraph 12].

 

The advantage of typing in what you are looking for rather than entering the case itself, is that the words you are looking for are highlighted.

 

Dimond v Lovell (2000) is a very interesting read, to quote part of it,

 

(c) Order of the court

 

Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable

 

You could quote

Form and content of regulated consumer credit agreements

2.-{1)

Subject to paragraph (2) below, documents embodying regulated

consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1to these Regulations in so far as it relates to the type of agreement referred to in Column 1.

And say that the t and cs you sent were not contained within the agreement but were separate to and there the copy you sent did not contain the prescribed terms. It might be worth mentioning, that it should be noted that the T&Cs you sent were not even concurrent with the execution of the agreement."

[ncf355]

Hi,

 

Can someone please look at this credit agreement I was sent from sky card. To me it looks just like an application form and is not an enforceable agreement, as it only contains my signature. However, I asked my local trading standards office who seem to thing it is a correct enforceable credit agreement, because the paragraph at the bottom says "credit agreement" Any help and advice is greatly appreciated. Thank you.

"http://i209.photobucket.com/albums/bb241/greeny1968/creditagreementanon.jpg"

 

Trading standards are really a joke (with a few exceptions) trouble is, only the banks are laughing!

 

That doesnt look as though it has their sig on it, so they are screwed - you might want to make TS aware of the following:

 

The agreement mentions the 'right to cancel' so is quite clearly a 'cancellable agreement'

 

So -

 

(CCA 1974)

 

63.--(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.

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless--

 

(a) subsection (1) applies (IT DOES NOT), or

 

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement. (THIS DOES NOT APPLY EITHER)

So, the above cannot have been complied with, because they never signed the agreement so it has never been properly executed so they had no way of sending you an executed agreement (which this couldnt be anyway because its an app form)

 

Which leads on to:

CCA 1974

 

S127

 

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if --

 

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other

document referred to in it, to the debtor or hirer before the commencement

of the proceedings in which the order is sought,(impossible for them to do this, as stated above they have no executed agreement)

Hence - this "agreement" is totally unenforceable with or without a court order (I invite any opinion on this, as always wise to get a 2nd opinion, or even 3rd, 4th and 5th!!)

 

Now come on, is this fun or what?

[robingetz]

Thanks for all your help:) , you've confirmed what I had originally thought, that this is an application form, until trading standards confused me by telling me it's a valid credit agreement. Don't know whether to inform the credit company of their error or just let the 30 days expire.

[noomill060]

Dont mention it to them, let them find out themselves.

 

They will be well aware of the situation.

[BLADES65]

Could you take a look at my thread, I have received a finla response from HFC in relation to CCA request.

 

http://www.consumeractiongroup.co.uk/forum/hfc-household/96426-blades65-hfc-gm-card.html#post892385

 

Thanks

[Jeff2000]

Thanks for all your help:) , you've confirmed what I had originally thought, that this is an application form, until trading standards confused me by telling me it's a valid credit agreement. Don't know whether to inform the credit company of their error or just let the 30 days expire.

 

 

Hi,

 

I would be inclined to wait until they attempt to collect again!

 

Let them dig as big a hole as possible for themselves!

 

 

Regards, Jeff.

[un1boy]

Err.....look what I have jsut received from TS:

 

There has been a debate raging as to whether debt collection agencies have to comply with this. The OFT and at least one large company have had varying legal opinions. Debt collection agencies are rarely in a position to produce a photocopy of the original signed agreement, more often than not they never see it and are completely reliant on the company to source it for them when disputes arise. Often the lender no longer has it as they get archived, lost, etc. An OFT lawyer is still considering it.

 

One issue I have come across before is that they are only under a duty whilst the agreement is still active, if it has been discharged it can be a different matter.

 

At the moment it is still a criminal offence (in theory), and at the moment it can make it unenforceable, although both of these are set to change under the new Act, etc. It is being decriminalised by the UCPD.

 

This anecdote could be useful "One consumer went to court, disputed the debt ever existed. A copy of the agreement couldn’t be produced. The judge awarded a day’s wages to the consumer, however the judge gave the debt collector one month to produce the proper agreement. The OFT debt collection guidance says “if a debt is disputed then the collector should provide evidence that the debt existed.”

 

My advice would be to put the burden back on them - your C can then challenge their county court claim against him/her (if they make one), or start talking about harassment if they cannot prove the debt they are pursuing.

 

I do not understand the point being made here "It is also over 2 pages which cannot be linked and therefore the prescribed terms cannot be linked to the signature document as specified in the regulations."

 

s.78 states that the agreement is unenforceable whilst the breach continues (i.e. until they provide a proper copy and all the required info) - so when they do, it can become enforceable again.

 

This was an internal email i was sent by the person I lodged the complaint with, she received it from her colleague in the enforcement department!!

 

No wonder these banks make so much money - they are even above the law now!!

[ncf355]

Correction un1 -

 

They THINK they are above the law

 

TS can say what they like, ultimately (for me, anyway) its what the court says that matters

 

Bring it on!

[ncf355]

Right fols, its my turn to ask for some assistance from you lovely people

 

I have a hearing comeing up in mid october against Virgin credit card

 

Now, even though the hearing is due then, and has been issued since May, these lovely people have seen fit to send numerous lettters and make numerous phone calls (even at this late stage around 2 -3 a day, outside of the times recommended by OFT)

 

I know there is a penalty for each act of enforcement whilst they are in default, but does anyone know where this is detailed, and how much it is/how many years they get (I hope!)

 

 

All info gratefully received

 

Ta!

[noomill060]

"At the moment it is still a criminal offence (in theory), and at the moment it can make it unenforceable, although both of these are set to change under the new Act, etc. It is being decriminalised by the UCPD."

If this refers to s.127(3), I have had TS officer saying the same thing, though he soon started back pedalling when I reminded him the repeal of this section of CCA 1974 specifically stated that this was not retrospective re: pre April 2007 contracts!

"My advice would be to put the burden back on them - your C can then challenge their county court claim against him/her (if they make one), or start talking about harassment if they cannot prove the debt they are pursuing."

I think what they are saying that the law is quite clear and that the consumer can sort it out themselves, in court.

Like ncf says- "TS can say what they like, ultimately (for me, anyway) its what the court says that matters"

 

 

[noomill060]

ncf- it is specified in the CCA1974 and OFT guidelines.

[noomill060]

"I do not understand the point being made here "It is also over 2 pages which cannot be linked and therefore the prescribed terms cannot be linked to the signature document as specified in the regulations."

 

s.78 states that the agreement is unenforceable whilst the breach continues (i.e. until they provide a proper copy and all the required info) - so when they do, it can become enforceable again. "

 

 

The person who wrote this appears confused by your letter.

 

What did you tell them- that you havent recieved anything or that you had recieved an application form and a copy of the T&Cs?

[noomill060]

ncf- I would not advise reliance on TS taking any action against offences under failing to provide a copy agreement. They do not consider the offences serious enough to bother with.

[anotherway]

Hi all

 

Would someone please be able to have a quick look at the Credit agreement I have been sent from northern rock? We thinks its enforcable but just need a second/third/fourth opinion!

Its pretty urgent too, i need to send in my defence tomorrow

thanks

 

http://i217.photobucket.com/albums/cc59/vanessabe_2007/Northernrock1.jpgan

[miss muppet]

Try that again, the link didn't appear, just the photobucket site:)

[Goldlady]

Link doesn't work anotherway

[anotherway]

right let me try again... lol!

 

http://i217.photobucket.com/albums/cc59/vanessabe_2007/Northernrock1.jpg

[ncf355]

ncf- I would not advise reliance on TS taking any action against offences under failing to provide a copy agreement. They do not consider the offences serious enough to bother with.

 

Hi,

 

dont worry, I am under no illusions about that particular toothless tiger (although I appreciate some TS offices are tring their best with their hands tied!)

 

All my action will be in court (county)

 

And if that works I shall then pursue criminal actions myself

[paulwlton]

Can a creditor constitute an agreement from banking records if the agreement cannot be located or is lost? And would this then comply with the Act.

[TideTurner]

Can a creditor constitute an agreement from banking records if the agreement cannot be located or is lost? And would this then comply with the Act.

 

Paulwlton,

 

An agreement or contract must be available in order that any of the parties involved can rely on any of the terms of such agreement or contract.

 

If this is lost and either yourself or the lender intends to rely upon it to enforce any of their rights or any transactions which have been made, these are nonenforceable as there is no contract.

 

There is the possibility that a verbal agreement may be claimed, but a Corporate would be negligent if they ever relied upon this, given their duty to their shareholders.

 

Tide