Cap1 & CCA return

[car2403]

A single document may comprise of more than one page therefore, the page headed t&cs refered to on the signature page would be within the document. Is this not correct?

 

 

Regards

 

Whether the terms are part of the same document is a question of fact, so only a Judge can decide if they are/are not part of the same document.

 

For me, if the T&C's are "linked" to the signature document, but don't have consecutive page numbers/ref numbers linking them, (as part of the same document) they are not part of that document.

 

Other things to look out for are key words such as "contained"(which suggests is part of the same document) and "attached" or "referred to", (which suggests is not part of the same document) as that could make or break their claim.

 

Also, if you can break the chain of causality, perhaps by showing the T&C's are current without the originals being available, or by them having £12 fees instead of £25 fees, that would all throw doubt on the construction of the document, IMHO.

 

Remember though, that it is for the creditor to show what the document does or doesn't contain. It's not for you to prove that the documents are separate. The burden lies on the creditor.

 

There is something else, though... Which part of the agreement is "regulated" under the Act? The reason I say that is because the T&C's, generally, won't be regulated under the Act. If that is the case, the agreement should be headed "partly regulated" by the Act, if the T&C's are part of the same document. Take a look here;

 

What the agreement must contain

1 A heading in one of the following forms of words shown prominently on the first page:

 

Hire-Purchase Agreement regulated by the Consumer Credit Act 1974

 

or

 

Conditional Sale Agreement regulated by the Consumer Credit Act 1974

 

or, in any other case,

 

Credit Agreement regulated by the Consumer Credit Act 1974.

 

Where the document embodies an agreement, of which at least one part is a credit agreement not regulated by the Act, the word ‘partly’ must be inserted before ‘regulated’ in the heading – unless the regulated and unregulated parts of the agreement can be clearly seen to be separate.

 

Also...

 

If the agreement refers to another document that contains the T&C's, there's an argument that the agreement isn't executed correctly. The CCA is clear:

 

Quote:

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.

Section 60(1) says:

 

Quote:

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.

So a properly Executed Agreement MUST be signed by the debtor and the creditor in the prescribed manner and the document MUST contain all of the terms and conditions that you are agreeing to. Otherwise it's not executed.

[banker_rhymes_with]

Hello Chris!

 

Good post.

 

Can you please advise where the above was quoted from:

 

What the agreement must contain...

 

I assumed it was from CCA 1974, but can't spot the Section.

 

Cheers,

BRW

[callumsgran]

Can someone help me

I have today received what i see as a dodgy CCA from Simply Be

 

I posted the request on the 14th October and they say in their letter that they didnt receive it until 23rd October (lies) it was signed for on the 16th October, i have the receipt for recorded/signed for plus they deposited my £1 cheque on the 18th Oct as it was cashed on the 21st

 

Basically they have stalled for extra time whilst frantically looking for an agreement they dont have

 

They have stated that under regulation 3 (2)(b) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 there is no requirement for them to supply me with a photocopy of the agreement bearing my signature and that they can just supply me with a 'true copy' of the agreement

 

I took this account out in May 2005, so this is incorrect, right?

So if they've sent me a 'true copy' of a current agreement(it mentions the £12 charge) they havent

complied with my request for a 'true copy' of the agreement they would've sent me at the time i opened the account have they?

Please tell me i'm getting this right?

[tinkerbell20]

So if they've sent me a 'true copy' of a current agreement(it mentions the £12 charge) they havent

complied with my request for a 'true copy' of the agreement they would've sent me at the time i opened the account have they?

Please tell me i'm getting this right?

 

 

Yes thats right - it must be a true copy not a "reconstructed" this is the agreement you should have had type of response. They also need to enclose all documents referredt to within agreement and a current O/S balance of account.

[B3rty]

I think you will find this is a grey area and they can send a reconstructed copy omitting the signature...however to enforce they would need to prove the original in court..

[tinkerbell20]

I think you will find this is a grey area and they can send a reconstructed copy omitting the signature...however to enforce they would need to prove the original in court..

 

 

It can be reconstructed BUT it must be a true copy of original agreement i.e if original agreement doesn't contain prescribed terms then true copy shouldn't either, if default charges were £25 then default charges can't be £12. If original agreement is produced later and is eg an unenforceable agreement then potentially the Credeitor may have laid themselves open to the Fraud Act 2006 if they have been obtaining money from debtor due to production of a false instrument.......

[callumsgran]

Yes thats right - it must be a true copy not a "reconstructed" this is the agreement you should have had type of response. They also need to enclose all documents referredt to within agreement and a current O/S balance of account.

Thanks tinks, so even though they've quoted the 1983 regs they're still in the wrong?

It's still not enforceable?

 

They did send the current balance statements and the current t&c's are on the back of the so called 'true copy'

[tinkerbell20]

Thanks tinks, so even though they've quoted the 1983 regs they're still in the wrong?

It's still not enforceable?

 

They did send the current balance statements and the current t&c's are on the back of the so called 'true copy'

 

 

Well I've seen letters from creditors that say we agree the agreement is unenforceable but we can still force you to pay and other rubbish like that. Just because they quote some impressive sounding regulations doesn't mean that what they are saying is correct.....lol! If you read the Regulations and the OFT interprestaion & Goodes then you will realise that a true copy must be just that though it can as B3arty say ommit the signature box.

 

colle

[callumsgran]

Well I've seen letters from creditors that say we agree the agreement is unenforceable but we can still force you to pay and other rubbish like that. Just because they quote some impressive sounding regulations doesn't mean that what they are saying is correct.....lol! If you read the Regulations and the OFT interprestaion & Goodes then you will realise that a true copy must be just that though it can as B3arty say ommit the signature box.

 

colle

Thanks, my point is i'm certain they dont have the original (how many of us actually sign them then send them back?)

And they have sent a current 'true copy' with no sig from me but in their sig box there is a sig from a PJ Tynan it looks like

[tinkerbell20]

Thanks, my point is i'm certain they dont have the original (how many of us actually sign them then send them back?)

And they have sent a current 'true copy' with no sig from me but in their sig box there is a sig from a PJ Tynan it looks like

 

 

I find that where creditors have enforceable agreements or alternatively agreements they think may pass as enforceable they tend to send them together with an up to date copy of the current version of the agreement.

 

In cases where they haven't it has usually transpired that there is weither no copy agreement at all or the original agreement is unenforceable................

 

On rare occasions an enforceable CCA does arrive after a period of many months but by then the Creditor tends to have committed breaches with the termination of the agreeemnt.

[car2403]

Hello Chris!

 

Good post.

 

Can you please advise where the above was quoted from:

 

 

 

I assumed it was from CCA 1974, but can't spot the Section.

 

Cheers,

BRW

 

Yes, I should have said it was the Consumer Credit (Agreements) (Amendment) Regulations 2004

[car2403]

Thanks, my point is i'm certain they dont have the original (how many of us actually sign them then send them back?)

And they have sent a current 'true copy' with no sig from me but in their sig box there is a sig from a PJ Tynan it looks like

 

Meanwhile, back at the ranch, sending them a DPA SAR requesting the original agreement should force their hand...

[callumsgran]

Meanwhile, back at the ranch, sending them a Data Protection Act S.A.R - (Subject Access Request) requesting the original agreement should force their hand...

Yes thanks hun, will do that first thing

[B3rty]

The Consumer Credit (Agreements) (Amendment) Regulations 2004

[Having_A_Knightmare]

Quick Question

 

Just filling im my AQ for a current account.

 

I know the agreement is part 5 exempt but do they still have to serve a DN to terminate the account. I assume they do as its shwing a default on credit file but just need to check....

 

CHeers

 

HAK

[car2403]

Quick Question

 

Just filling im my AQ for a current account.

 

I know the agreement is part 5 exempt but do they still have to serve a DN to terminate the account. I assume they do as its shwing a default on credit file but just need to check....

 

CHeers

 

HAK

 

No.

 

The original agreement will state how the agreement will be terminated - usually by way of Termination Notice under s.98, rather than Default Notice under s.87/s.88. (This complies with the OFT's Determination under s.74 also)

[Having_A_Knightmare]

Hi Car

 

Thing is they have no agreement so what do I do

 

HAK

[car2403]

Hi Car

 

Thing is they have no agreement so what do I do

 

HAK

 

Have you seen the OFT Determination? if they complied with that, the debt will be enforceable;

 

To help clarify these matters, this is an extract from a Court case (Coutts v Sebastyen) and is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

[Having_A_Knightmare]

Car

 

I have had Nothing to inform me of the credit limit or APR etc

 

All they have sent me is an application form for the currment account with no t&C or the above terms.

 

Can I confirm that this is unenforcable and the rest of the Consumer Credit Act applies Ie the Default section...

 

Cheers

 

HAK

[SteveH2508]

Car

 

I have had Nothing to inform me of the credit limit or APR etc

 

All they have sent me is an application form for the currment account with no t&C or the above terms.

 

Can I confirm that this is unenforcable and the rest of the Consumer Credit Act applies Ie the Default section...

 

Cheers

 

HAK

 

as the DG's determination is about Part V of the Act and the requirement to serve a Default Notice is under Part VII, I would assume they have to serve a compliant DN - unless I've missed an obscure Reg somewhere?

[car2403]

Car

 

I have had Nothing to inform me of the credit limit or APR etc

 

All they have sent me is an application form for the currment account with no t&C or the above terms.

 

Can I confirm that this is unenforcable and the rest of the Consumer Credit Act applies Ie the Default section...

 

Cheers

 

HAK

 

If they don't comply with the s.74 Determination, they have to comply with the whole Act as they don't get the benefit of it. Looks like it's unenforceable if they haven't got an agreement fully compliant, in your case.

 

as the DG's determination is about Part V of the Act and the requirement to serve a Default Notice is under Part VII, I would assume they have to serve a compliant DN - unless I've missed an obscure Reg somewhere?

 

No - the agreement itself means the parties have waived the need for a DN. There is some discussion to be had over whether a Termination because of a default in payments requires a DN, but, essentially, only a s.98 Termination notice is required. (Unless, as in Un1's case, the Determination hasn't been complied with, meaning a DN is definately required - but then, there is no agreement, so there can't be a default, so no DN... Gets complicated, doesn't it?)

 

[Having_A_Knightmare]

Cheers CAR

 

On the POC of the claim they have stated an agreement in writing signed on the **/**/04

 

I have asked on a draft directions for the said agreement to be produced. I have also asked for the copy of the default notice. Should I change this to termination notice???

 

Got to get this correct for Court...

 

HAK

Edited November 10, 2008 by Having_A_Knightmare

[car2403]

Cheers CAR

 

On the POC of the claim they have stated an agreement in writing signed on the **/**/04

 

I have asked on a draft directions for the said agreement to be produced. I have also asked for the copy of the default notice. Should I change this to termination notice???

 

Got to get this correct for Court...

 

HAK

 

Yes. Although "any Default or Termination Notice" sounds better and they won't let on it what you are after.

 

I would also insist on pre-hearing disclosure of the agreement, in that case, HAK.

[Having_A_Knightmare]

I would also insist on pre-hearing disclosure of the agreement, in that case, HAK.

 

Car how do I do the above...Is the request in the draft directions not good enough??

 

Cheers Mate

 

HAK

[car2403]

Car how do I do the above...Is the request in the draft directions not good enough??

 

Cheers Mate

 

HAK

 

Oh, it should be, but if they don't comply you need to apply to the Court for an Order that they do comply.

 

Without this document, you can't state your case sufficiently - neither can they - so it must be disclosed pre-hearing, IMHO.