Cap1 & CCA return

[Guest The Terminator]

 

It confirms once and for all that an application form cannot be construed as an agreement.

 

That is what has been said throughout this thread.

It confirms that the courts cannot currently enforce any agreement that does not comply in totality with CCA 1974 S61(1)

 

Which i'd say is a majority of them.

 

It confirms that a copy agreement has to be a true copy, i.e. identical to the original with only the signatures and boxes removed - i.e. a "generic" T&C type document simply will not do.

 

But why remove the signiture boxes.

 

I think it's a very useful piece of back-up data that could be put under a judges nose.

 

Pete

 

I think either sticking under a judges nose or inserting it into a POC has got to be benificial.

[tamadus]

Hi Tam, I think it actually says quite a lot:

 

It confirms once and for all that an application form cannot be construed as an agreement.

 

It confirms that the courts cannot currently enforce any agreement that does not comply in totality with CCA 1974 S61(1)

 

It confirms that a copy agreement has to be a true copy, i.e. identical to the original with only the signatures and boxes removed - i.e. a "generic" T&C type document simply will not do.

 

I think it's a very useful piece of back-up data that could be put under a judges nose.

 

 

Pete

 

I dont see any mention of application forms which carry all the requirements of the CCA not being acceptable to double up as the agreement. In actual fact the concept fulfills the OFT recomendations of what constitutes an agreement.

 

Now a question

 

just been looking at an agreement of mine and the T&C are totally illegible (although they look to be from about the right era) This suggests the thing is not valid.

 

Comments ?

[un1boy]

I would agree with your statement Tam as it would be difficult for you to confirm if they are the original ones or not. And doesn't it say somewhere in the act that all docs have to be legible?

 

Or is that the DPA?

 

PS is this an agreement you have received as part of a CCA request?

[tamadus]

Yes Un1 it is

 

I'm writing to tell them it doesnt comply with the requirements of my request

[Guest The Terminator]

Well only another 10 days to go before the Americans commit a criminal offence. And your correct Tam it doesn't comply.

[Acerfan]

Hi,

Received an almost completely illegible copy of an application form from my CC company yesterday (6 days after end of timescale). The letter was dated 4/1, which was still within the timescale, but the postmark on the envelope says 10/1 (wonder if they backdated it cheeky sods). It seems just to be an application form as the info on it is limited - nothing as far as I can see about a credit limit or account number. They have included a copy of the T&Cs which seem to be from that time (charges are at higher rate).

I had written to them at the end of the 14 days + 1 calender month to say they hadn't complied & was witholding payment, but got a call last night demanding immediate payment of the minimum monthly payment + enough to get me back within credit limit (their charges took me over limit). I was forced to tell them why I wasn't going to make payment - ie why the account's in dispute. Hope this doesn't affect anything.

Am planning on writing to them to tell them they still haven't complied, but can anyone remind me of who to complain & under what legislation/law they can't harrass me over the phone about this? Don't want to be receiving constant phone calls as I'm generally out all day & my partner (who works from home) has to field all my calls.

 

Also, when I first got the card, they sent the statements etc to my parent's address. Having looked at the form, 'Student Application', it has 2 sections for addresses - term address & parent's/guardian's address. I wasn't returning to my parent's out of term time, so wasn't receiving statements & was being charged for late payments etc. Just wondering if this was in fact a blunder on their part or if it's standard procedure on their student cards? Or can I still make a complaint about this?

 

Cheers all

[un1boy]

Yes Un1 it is

 

I'm writing to tell them it doesnt comply with the requirements of my request

 

Yay, looks like I am finally beginning to understand some of this!! With your help guys, so thanks loads! :D

[un1boy]

Hi,

Received an almost completely illegible copy of an application form from my CC company yesterday (6 days after end of timescale). The letter was dated 4/1, which was still within the timescale, but the postmark on the envelope says 10/1 (wonder if they backdated it cheeky sods). It seems just to be an application form as the info on it is limited - nothing as far as I can see about a credit limit or account number. They have included a copy of the T&Cs which seem to be from that time (charges are at higher rate).

I had written to them at the end of the 14 days + 1 calender month to say they hadn't complied & was witholding payment, but got a call last night demanding immediate payment of the minimum monthly payment + enough to get me back within credit limit (their charges took me over limit). I was forced to tell them why I wasn't going to make payment - ie why the account's in dispute. Hope this doesn't affect anything.

Am planning on writing to them to tell them they still haven't complied, but can anyone remind me of who to complain & under what legislation/law they can't harrass me over the phone about this? Don't want to be receiving constant phone calls as I'm generally out all day & my partner (who works from home) has to field all my calls.

 

Also, when I first got the card, they sent the statements etc to my parent's address. Having looked at the form, 'Student Application', it has 2 sections for addresses - term address & parent's/guardian's address. I wasn't returning to my parent's out of term time, so wasn't receiving statements & was being charged for late payments etc. Just wondering if this was in fact a blunder on their part or if it's standard procedure on their student cards? Or can I still make a complaint about this?

 

Cheers all

 

Hi Acerfan, I believe (but may not be correct) that the harassment act is here, they may be something in their: Protection from Harassment Act 1997

 

I thought the other one was Communications Act 2003 But again, I think I'm wrong. You coudl try to read through.

 

I'm sorry i can't be more helpful at this stage- I'm sure someone else will correct me though!

[Smoothy]

Thanks to this thread and the invaluable advice I have gleaned from it and to Tamadus, Terminator, Uni and many others to numerous to mention, as of today

*********

(un)Welcome Finance

Crapital One

GCC (Although they acknowledged no agreement and have decided not to take the matter further)

************

Have all failed to supply a copy of the executed agreements as dictated by CCA. Letters going out monday regarding non compliance.

All my mini battles are listed here http://www.consumeractiongroup.co.uk/forum/debt-bailiffs-advice/47951-smoothly-does.html#post381929 and although the debts remain, they are now unenforceable! Yipee.

 

I have spent too many years living in the dark regarding my rights as a consumer and even though I have on occasion argued with creditors about their underhand tactics, I have never been assured that my arguments have been valid. That is until I found this site and the helpful people that have given their advice freely and without wanting anything in return.

I believe a revolution is coming. Maybe we will go down in history as

 

The Consumers Revolt. (I know i'm pretty revolting!!)

The war continues but the battle is won.

 

Thanks all of you.

 

Smoothy

[meagain]

It confirms once and for all that an application form cannot be construed as an agreement.

 

Sorry, I must have missed that particular part of the response ...

 

It confirms that a copy agreement has to be a true copy, i.e. identical to the original with only the signatures and boxes removed - i.e. a "generic" T&C type document simply will not do.

 

It doesn't, however, invalidate the application form + T&C combination that some lenders supply.

[un1boy]

Well done Smoothy!!

[meagain]

I have spent too many years living in the dark regarding my rights as a consumer and even though I have on occasion argued with creditors about their underhand tactics, I have never been assured that my arguments have been valid.

 

The lenders like to try and put a quick end to things, since they know you can blow out a candle, but you can't blow out a fire.

 

Well done on asserting your rights - every victory for an individual is a victory for us all

[Guest The Terminator]

Hi Acerfan, I believe (but may not be correct) that the harassment act is here, they may be something in their: Protection from Harassment Act 1997

 

I thought the other one was Communications Act 2003 But again, I think I'm wrong. You coudl try to read through.

 

I'm sorry i can't be more helpful at this stage- I'm sure someone else will correct me though!

 

Section 1 of the "Protection from Harrassment Act" and Section 127 of the "Communications Act" are the parts you need to read or in my case I find that Section1 of the "Malicious Communications" Act(1988) works the best.

[un1boy]

Great, so I was in the right area then?!

 

Thanks Term!

[TideTurner]

The Terminator posted this previously.

Communications Act 2003 section 127

(1) A person is guilty of an offence if he-

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.

(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he-

(a) sends by means of a public electronic communications network, a message that he knows to be false,

(b) causes such a message to be sent; or

© persistently makes use of a public electronic communications network.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

[TideTurner]

If this 'appears' to be an application form look at the Data Protection Act 1998 Part I Sch. 1 - the Second Principle

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

Look through the other Principles (they're in English) and see which others apply to your case.

Tide

[Number6]

Sorry, I must have missed that particular part of the response ...

 

The letter states....."To be an executed agreement, it would have had to have been signed originally and contain all the terms of the agreement"

 

S61(1) states:

 

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

 

ergo combining the letter and S61 clearly shows that any application form that is not signed by both parties CANNOT be an agreement.

 

It doesn't, however, invalidate the application form + T&C combination that some lenders supply.

 

Again from the above, an application form and a SEPERATE copy of the T&C's cannot be a valid agreement either.

 

"... it would have had to have been signed originally and contain all the terms of the agreement"

 

And finally "...Prior to the CCA 2006, the section also provided that the Court could not make an enforcement order under section 65(1) if section 61(1) was not fully complied with"

 

So add up all the above and whichever way you cut it an application form + a seperate copy of the T&C's cannot be an agreement - if the T&C's are not contained within the same document as you signed how can anyone prove that you saw and read them before signing??

 

Pete

[breadline]

Can i ask then if a photo copy of a contract and its T&C are sent as 2 separate sheets then you do not have to accept this, As the contract may have been double sided so should the copy?

 

Many contracts are sent out in separate sheets due to photocopying both sides, so if you haven't got the original agreement then you would want to see it to confirm it is a true copy.

 

So would be in your right to continue asking?

As it would be easy to make a document look double sided on photocopying, so surely an original contract or 1 A4 size sheet with T&C signed woudl only be acceptable as a copy ?

[un1boy]

The letter states....."To be an executed agreement, it would have had to have been signed originally and contain all the terms of the agreement"

 

S61(1) states:

 

 

 

ergo combining the letter and S61 clearly shows that any application form that is not signed by both parties CANNOT be an agreement.

 

 

 

Again from the above, an application form and a SEPERATE copy of the T&C's cannot be a valid agreement either.

 

"... it would have had to have been signed originally and contain all the terms of the agreement"

 

And finally "...Prior to the CCA 2006, the section also provided that the Court could not make an enforcement order under section 65(1) if section 61(1) was not fully complied with"

 

So add up all the above and whichever way you cut it an application form + a seperate copy of the T&C's cannot be an agreement - if the T&C's are not contained within the same document as you signed how can anyone prove that you saw and read them before signing??

 

Pete

 

Good post thank you.

 

I see wxactly where you're coming from!

[joneshousehold]

Did anyone have any thoughts on this from Acerfan

Hi,

Received an almost completely illegible copy of an application form from my CC company yesterday (6 days after end of timescale). The letter was dated 4/1, which was still within the timescale, but the postmark on the envelope says 10/1 (wonder if they backdated it cheeky sods).

Just interested you understand!

[joneshousehold]

And can anyone clarify if and where the legislation says copies of documents must be legible? Is it part of the CPR rules?

[TideTurner]

And can anyone clarify if and where the legislation says copies of documents must be legible? Is it part of the CPR rules?

 

S64 (2)(b)© DPA provides

 

Transmission of notices etc. by electronic or other means.

(2) The requirement that any notice, request, particulars or application to which this section applies should be in writing is satisfied where the text of the notice, request, particulars or application-

(a) is transmitted by electronic means,

(b) is received in legible form, and

© is capable of being used for subsequent reference.

[lookinforinfo]

Thanks for that Tide Turner. I scoured the Consumer Credit Act looking for

that very statement. I knew I had seen it before, but just couldn't lay my

hands on it.

And after I had gone through the CCA, I just couldn't face starting all over

again with the DPA.

When you need a good whipping to get you to work, where is Willow when

you need her?

[Guest The Terminator]

If this 'appears' to be an application form look at the Data Protection Act 1998 Part I Sch. 1 - the Second Principle

 

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

 

Look through the other Principles (they're in English) and see which others apply to your case.

 

Tide

 

How about this one from Schedule 1

 

8. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.

 

and what is written in MBUSA's T&C

 

13e So we can process, use, record and release personal information, we may pass your information outside the United Kingdom to other countries including the United States of America. We are responsible for making sure that your personal information continues to be protected during this type of transfer.

 

So if that is the case then how is it that Indian Call Centres have no regard for people's personal information.

 

Then I like this one:

 

The sixth principle 8. A person is to be regarded as contravening the sixth principle if, but only if-

(a) he contravenes section 7 by failing to supply information in accordance with that section,

(b) he contravenes section 10 by failing to comply with a notice given under subsection (1) of that section to the extent that the notice is justified or by failing to give a notice under subsection (3) of that section,

© he contravenes section 11 by failing to comply with a notice given under subsection (1) of that section, or

(d) he contravenes section 12 by failing to comply with a notice given under subsection (1) or (2)(b) of that section or by failing to give a notification under subsection (2)(a) of that section or a notice under subsection (3) of that section.

It would seem that the criminal charges are now catching up with the bank charges.

[TideTurner]

I agree Terminator, I've been looking at this for some time. There are clear violations which the banks have relied upon peoples lack of knowledge or ignorance to pursue.

 

There are wider areas that the banks need to be looking at.

 

The main one is where they have provided your information to a third party, have not checked the credentials of that company, and haven't a clue as to who now holds your information, when they are the source. And to say they cannot now provide a certificate of consent is simply negligent.

 

With great power comes great responsibility.

 

Why then, have they ever allowed your information to get out of their control?

 

By a Gentleman's agreement that those they provided it to would not process it or forward it?

 

How naive.