Cap1 & CCA return

[spidey41]

i cant get it any bigger i just viewed these by zoom on my picture editor and it looks like a lot of the words have been blacked out

[B3rty]

This stuff about the original being needed is not as clear cut as we might like to think, and I know of one case recently where a judge allowed enforcement on a copy document simply because the creditors swore it was a true copy of the original.

 

The CPRs seem to suggest that the original is needed in Court but look at Section 8 of the Civil Evidence Act 1995:

 

Proof of statements contained in documents

 

(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved—

 

(a) by the production of that document, or

 

(b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve.

 

(2) It is immaterial for this purpose how many removes there are between a copy and the original.

 

 

Now, what this means is that a Court may accept a copy for enforcement as long as it is satisfied as to the creditor's methods of archiving.Today 18:38

 

Ian....I have looked at this....and its a grey area.....I would still argue that an agreement isn't a statement contained in a document at the end of the day its one more thing to hit the opposing lawyer with and suggest to the judge.....

[pt2537]

If the judge orders the originals be produced then they better produce the original because the judge has a rather wide ranging case management power,

 

also the CPR was produced in 1998 and therefore the judge may consider that it supercedes the requirements civil evidence act

[Acerfan]

Hi,

I need to send off a s.10 notice as my details have been passed on to a dca for an unenforceable debt (credit card company has sent me my application form in response to CCA request) for which I never signed any agreement or agreed that they could pass on my information to third parties. Obviously, I don't want to agree that there was a contract as per the standard letter, so I've adapted it. I was just wondering if anyone could have a look at my draft I've posted in my thread Suspect I have no loan agrrement please.

 

I'd really appreciate it, so many thanks in advance

[car2403]

When they say document would you say the signature page would have to be the last page.

 

HAK

 

It's immaterial if it's contained within the same document.

[car2403]

Is this thread showing up in your subscribed threads link??

 

There's a problem with the site that is currently being worked on which seems to be effecting thread subscriptions.

[car2403]

Ian....I have looked at this....and its a grey area.....I would still argue that an agreement isn't a statement contained in a document at the end of the day its one more thing to hit the opposing lawyer with and suggest to the judge.....

 

If it's a signed certified copy, the original isn't necessary to enforce the agreement, so this is a moot point.

 

Most of these claims would be on the small claims track, so the usual rules of evidence won't be applied so strictly - it's up the the defendant to defend in such a way that requires the original (or a signed certified copy) to be produced, otherwise the Judge probably won't even bother asking for it.

[ncf355]

i cant get it any bigger i just viewed these by zoom on my picture editor and it looks like a lot of the words have been blacked out

 

Hi Spidey,

 

when you scan it, what resolution are you using?

 

It is the DPI that normally dictates sizing - if you scan at 300 dpi you should get a decent size?

[BLADES65]

HFC sold the account for a GM card to TBI financial services despite being in default of my CCA request from June 2007.

 

HFC sent this with not T&C's issued at the time or statement of account.

 

The 'agreement' is an application form and contains no prescribed terms:

 

 

 

I sent a letter of complaint and put the account in dispute.

 

 

I have today received the following from TBI inhouse solicitor:

 

 

 

 

 

 

Your advice on a suitable response would, as always, be much appreciated.

[car2403]

They seem to be implying that you have received the T&C's, BLADES65, but you haven't?!

 

Write back asking for another copy - it could be that the prescribed terms are on the reverse, in which case they'll need to prove they are part of the same document, (by relying on reference numbers linking the pages together) in which case this COULD be an enforceable agreement.

 

Of course, if they can't provide the T&C's, or they can't rely on the "linking" of those pages to your signature, they don't have an enforceable agreement and can't seek any enforcement via the Court.

 

The trick here is to ask for confirmation, seeing what you get back in reply, as "going in hard" with HFC at this point could backfire in that they start proceedings and CAN seek enforcement once the hearing comes to Court.

[BLADES65]

They seem to be implying that you have received the T&C's, BLADES65, but you haven't?!

 

Write back asking for another copy - it could be that the prescribed terms are on the reverse, in which case they'll need to prove they are part of the same document, (by relying on reference numbers linking the pages together) in which case this COULD be an enforceable agreement.

 

Of course, if they can't provide the T&C's, or they can't rely on the "linking" of those pages to your signature, they don't have an enforceable agreement and can't seek any enforcement via the Court.

 

The trick here is to ask for confirmation, seeing what you get back in reply, as "going in hard" with HFC at this point could backfire in that they start proceedings and CAN seek enforcement once the hearing comes to Court.

 

They supplied a copy of 2006 T&C's not the original ones from 1995.

 

The signature box states:

 

'This is a Credit Agreement regulated by the Consumer Credit Act 1974

Sign only if you wish to be legally bound by its terms'.

 

I notice on other 'application' type agreements it usually contains the line 'I have read the terms and conditions overleaf'

 

As far as I can remember the leaflet did not contain any T&C's.

 

The account is not with HFC anymore they have sold it to TBI Financial Limited.

[car2403]

They supplied a copy of 2006 T&C's not the original ones from 1995.

 

The signature box states:

 

'This is a Credit Agreement regulated by the Consumer Credit Act 1974

Sign only if you wish to be legally bound by its terms'.

 

I notice on other 'application' type agreements it usually contains the line 'I have read the terms and conditions overleaf'

 

As far as I can remember the leaflet did not contain any T&C's.

 

The account is not with HFC anymore they have sold it to TBI Financial Limited.

 

Tsk, tsk - how can they prove the original terms allowed for variance at a future point in time if they haven't provided the originals?

[ian1969uk]

They are trying to bluff you into thinking that having prescribed terms within separate T&Cs is acceptable.

 

Of course, we know that this is not the case.

 

Time to quote Wilson I think:

 

From Wilson vs Hurstanger Ltd, COA June 2007

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

[Having_A_Knightmare]

I would also point out that been a Solicitor you should know better than to give out incorrect information. I would also ask him how to make a personal complaint about his actions.

 

That should shut him up for a bit

[B3rty]

I believe he’s right about the application form becoming the agreement, however this needs to contain the prescribed terms set out in the manner set out in SI 1553 s.4 Consumer Credit (Agreements) Regulations 1983

 

What you have isn’t remotely close so therefore you could argue for 127(3) in court, which brings up an interesting point where this could fail in court on presenting it as an application form which cant be used as an agreement for credit or won where as the defence is no prescribed terms in the order and layout as shown below, you need to clarify what your argument is....

Just write back and thank him for pointing out the useful information however where are the prescribed terms as per SI 1553 and point out that with out those its not enforceable by the court under 127(3)....

 

 

4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

 

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

 

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;

[

© under the heading "Key Financial Information", the financial and related particulars set out in paragraphs 6 to 8B, 11 to 14 and 15 to 17 of Schedule 1 to these Regulations;]

 

(d) under the heading "Other Financial Information", the financial and related particulars set out in paragraphs 3 to 5, 9, 10, 14A and 18 to 19A of Schedule 1 to these regulations;

 

(e) under the heading "Key Information"--

 

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these Regulations; and

 

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below; and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a

whole and shall not be preceded by any information apart from trade names, logos or the reference number of the agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross references to the terms of the agreement

[humbleman]

Most of the solicitors know d**** b**D about the CCA 1974 as an exercise I rang 4 large firms in my home town and asked them if they have anyone specialising in this area and when I spoke to their experts they knew Zero

[un1boy]

They are trying to bluff you into thinking that having prescribed terms within separate T&Cs is acceptable.

 

Of course, we know that this is not the case.

 

Time to quote Wilson I think:

 

From Wilson vs Hurstanger Ltd, COA June 2007

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

Ian, I'm a bit confused by this - how does this mean the the prescribed terms cannot be in the t&c's and what is it that says the t&c's are the document?

[BLADES65]

Thanks for all your replies.

 

I've just looked at the T&C's they supplied dated 2006.

 

Brilliant news I think. They DO NOT contain the prescribed terms, the T&C's say:

 

APR: Please see your statement

 

Total Charge for Credit: Please see your agreement.

 

Annual Interest Rates: Rates payable at the annual interest rate in your agreement

 

Well what they are saying is my agreement and the T&C's make up my agreement as per my CCA request, they DO NOT have any of the above as it's an application form with no prescribed terms.

 

So in effect at the time of my signing I was not given any document with the prescribed terms on it.

[car2403]

Blade, the application form can become an agreement, but must contain those prescribed terms.

 

They appear to suggest the prescribed terms are contained in the T&C's, but we know that may be true, but they can't (or haven't yet!) provided the original T&C's. (So can't show they allowed variation at a future point in time)

 

The prescribed terms could be something that says how they are worked out, rather than actually saying what they are, ("we will tell you your credit limit in advance which will appear on your statement" rather than "your credit limit is £X", or "we will tell you the interest rate applicable on your statement" rather than "your interest rate is X%", for example) BUT the agreement must contain SOMETHING that tells you how the prescribed terms are covered - if anything is missing from the agreement document, the debt is irrevocably unenforceable.

[BLADES65]

Blade, the application form can become an agreement, but must contain those prescribed terms.

 

They appear to suggest the prescribed terms are contained in the T&C's, but we know that may be true, but they can't (or haven't yet!) provided the original T&C's. (So can't show they allowed variation at a future point in time)

 

The prescribed terms could be something that says how they are worked out, rather than actually saying what they are, ("we will tell you your credit limit in advance which will appear on your statement" rather than "your credit limit is £X", or "we will tell you the interest rate applicable on your statement" rather than "your interest rate is X%", for example) BUT the agreement must contain SOMETHING that tells you how the prescribed terms are covered - if anything is missing from the agreement document, the debt is irrevocably unenforceable.

 

I always thought that the rate of interest had to be shown ie 19% etc at the outset of the agreement. I appreciate that this can be varied from time to time and that is in the T&C's but they have to have a starting point otherwise you are signing an agreement, then getting a statement after you have used the credit facility only to find that you are paying 1000% interest.

[B3rty]

All this is in SI 1553, however here's a link for the OFT 786pdf which explains it in easier to undertand terms

 

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft786a.pdf

 

For example the way the document has to be laid out is explained here and its interesting to note the OFT comment at the bottom

 

 

2.6 How should the information be ordered?

 

The information, statements of protection and remedies, and signature and separate boxes, required to be included in documents embodying regulated consumer credit agreements, must be set out in the order prescribed by Reg 2(4) and under the headings specified.

The prescribed ordering of blocks of information etc is as follows:

 

• nature of agreement (Sch 1 para 1)

 

• parties to agreement (Sch 1 para 2)

 

• ‘Key Financial Information’ – key financial and related particulars (Sch 1 paras 6-8B, 11-14 and 15-17)

 

• ‘Other Financial Information’ – other financial and related particulars (Sch 1 paras 3-5, 9, 10, 14A and 18-19A)

 

• ‘Key Information’ – other information (Sch 1 paras 20-24) and statements of protection and remedies (Sch 2)

 

• signature box (and any separate box, see Q5.3).

 

 

In the OFT’s view, the Regulations do not prescribe the ordering of items within each block, save that within ‘Key Information’ the information in Sch 1 paras 20-24 must precede the statements of protection and remedies in Sch 2 – see Q4.2. However, given that the consequences of a court holding otherwise would be unenforceability without a court order, creditors may wish to ‘play safe’ by setting out the information in the strict numerical order given within each block.

[BLADES65]

Thanks for that B3rty.

 

My interpretation of the OFT PDF is that the Interest Rate HAS to be shown:

 

8.6 What is meant by ‘rate of interest’?

Sch 6 para 4 applies to all running-account credit agreements, together with certain fixed-sum credit agreements, namely those:

1. which do not specify the intervals between repayments or the amounts of repayments;
   
2. under which the total amount payable may vary according to a specified formula by reference to an index or other factor; or
   which provide for variation of the amount or rate of any item included in the total charge for credit.

In such cases the agreement must include a term stating the rate of any interest on the credit to be provided. This is also required by Sch 1 para 10 in respect of such agreements – see Q3.32.

 

Or have I got it wrong.

[robingetz]

Can someone please have a look at my threads.

 

Thanks

 

http://www.consumeractiongroup.co.uk/forum/general/131023-barclaycard-cca-geniune-agreement.html#post1377061

 

http://www.consumeractiongroup.co.uk/forum/general/131025-aqua-card-valid-cca.html#post1377065

 

http://www.consumeractiongroup.co.uk/forum/general/131024-capital-one-genuine.html#post1377064

[ncf355]

B3rty,

 

the layout you quote from the OFT pdf relates to post 2006 docs - if you look at the para's referred to they arent in SI 1553

 

The only order required for pre 2006 is that the financial particulars and statements of protection must be "show together as a whole" and not interspersed with any other information (with the exception of cross references to the terms)

 

This is stated within SI 1553 Reg 2(4)

[BLADES65]

B3rty,

 

the layout you quote from the OFT pdf relates to post 2006 docs - if you look at the para's referred to they arent in SI 1553

 

The only order required for pre 2006 is that the financial particulars and statements of protection must be "show together as a whole" and not interspersed with any other information (with the exception of cross references to the terms)

 

This is stated within SI 1553 Reg 2(4)

 

That's right but Sch 6 was not changed by the 2006 docs and so the prescribed terms must still be shown on pre 2006 docs in particular the rate of interest.