Cap1 & CCA return

[FANTASY CHARGES]

Zubo, i can't see why not. If therre is is no Agreement, how can it be enfoceable. As good as CCCS is, they do not know about this. There is nothing to lose at this stage. It could lower the money to be repaid under the DMP and might make the other creidtors make sure they have crossed all the T's and dotted the i's. Talk to the CCCS counsellor about this and let him/her know that there is a possiblilty of an uneforceable debt.

 

Nothing ventured nothing gained

 

BATTLEAXE ... THE ANSWER IS YES ..... PLEASE PM ME

[Guest willowb]

accepting the risk that a creditor can pull a fully executed agreement out of the bag 3 months or more after the 12 days and get a court permission to exercise his rights -

 

Wxxx

[The Lantana]

Zubo

 

If the creditor finds the agreement he does not need leave of the court to enforce the debt. He clears the default by presenting a copy of the agreement to your fellow CAGer and is then free to enforce the debt through court action if he so chooses.

 

These actions can happen simultaneously, i.e. he clears the default by ensuring he presents the agreement in his court bundle. The fact an offence has been commited is of no concern to the Judge, as Laiste found out yesterday.

 

Once in court three things concern the Judge...

 

1) Is there a valid agreement

2) Has it been breached

3) Is the claimant entitled to enforce

 

Whiile the request for a copy of the agreement is outstanding the debt is legitimately in dispute. However, if I were in a position to continue my DMP payments I would, unless I had good grounds to genuinely believe I didn't owe any money (e.g. charges outweighing debt). By stopping payments the creditor will be hacked off and will be less disposed to any gestures of goodwill. JMHO

 

Regards

 

 

Lantana

[m55dlc]

Erm, section 77/8 isn't just about the agreement is it, there are other elements. Until these are met there is no compliance with s77/8. Make sure that is there in the court bundle, or they haven't complied and are attempting to enforce whilst not complying.

[The Lantana]

Fair point m55.

 

Regards

 

Lantana

[m55dlc]

I have another question....

 

If I sign an application form, and the application form is then signed by a shop assistant, the executed agreement then is theoretically valid. If that application for credit is then turned down when it is processed, where does that leave the application? It cannot be an executed agreement. The application form in question is for a store card (some of you have seen it), and there is an amount of 'instant credit'. If that is so, the executed signature is only covering the instant credit portion, as if the application is denied, how can the agreement have been executed?

 

Also, the missing parts of the application will have the 'office use only' portions, which will state as and when the application is affected. As it stands, the application form does not even purport to state when the agreement starts. Here is a quote:

 

"In the event that instant credit is granted this agreement shall permit you to draw on credit up to the instant credit limit notified to you only at the time of such notification. If you draw on credit at that time you will be bound by the terms of this agreement as far as they are applicable and your right to cancel referred to in the box below will not apply to this agreement. In the event that instant credit is granted we reserve the right subsequently to refuse to issue you with a card. If you do receive a card from us this agreement shall continue from the date shown on your card carrier."

 

The points are:

 

The 'agreement' supplied does not state the start date of the agreement. Between the date signed and the date the card is issued, this agreement cannot be drawn upon, during which time there isn't an agreement. If I cannot draw on it by whatever means, there isn't a credit agreement other than paying for the instant credit. The whole 'instant credit' seems dodgy and is only used as a sales technique. i.e. 'Apply for a card today and you can get X% off your purchases'.

 

There has got to be something that states the issue of a credit token in a credit token agreement is a foregone conclusion and that in an executed credit-token agreement, the agreement cannot be executed until the credit token is agreed?

[joneshousehold]

Zubo

 

Also if an agreement is produced it will need to be critically examined to see if it complies in full with CCA. If it does then fair do's but if it doesn't there may be other ways in which the debt becomes unenforceable.

[m55dlc]

I'm reading sections 57 at the moment 'withdrawl from prospective agreement'.

 

57 Withdrawal from prospective agreement

 

(1) The withdrawal of a party from a prospective regulated agreement shall operate to apply this Part to the agreement, any linked transaction and any other thing done in anticipation of the making of the agreement as it would apply if the agreement were made and then cancelled under section 69.

 

(2) The giving to a party of a written or oral notice which, however expressed, indicates the intention of the other party to withdraw from a prospective regulated agreement operates as a withdrawal from it.

 

(3) Each of the following shall be deemed to be the agent of the creditor or owner for the purpose of receiving a notice under subsection (2)—

 

(a) a credit-broker or supplier who is the negotiator in antecedent negotiations, and

 

(b) any person who, in the course of a business carried on by him, acts on behalf of the debtor or hirer in any negotiations for the agreement.

 

 

(4) Where the agreement, if made, would not be a cancellable agreement, subsection (1) shall nevertheless apply as if the contrary were the case.

 

It would seem I can sign the agreement, under subsection 4 and then subsection 1, they cannot state the agreement is not cancellable, as the issue of instant credit is carried out prior to signing ( I choose clothes, they offer a discount on the purchase if I apply for AN EVANS CARD), therefore irrespective of whether or not the agreement is signed, a cancellable agreement cannot be made uncancellable just because the offer of instant credit is taken.

 

Lets not forget here the application is for an EVANS CARD, as stated in their bumpfh and by the sales assistant.

 

Hmm, it seemed to make more sense in my head. Any takers?

[joneshousehold]

I read subsection (1) to say that if a party withdraws from the prospective agreement (ie withdrawal occurs before the agreement is executed), then the same happens as defined in the terms of S69 (which are the terms for cancellation of a cancellable agreement after it is executed). Subsection (4) then says subsection (1) applies in the event of a withdrawal even if the agreement is not cancellable. Sort of a belt and braces approach to prevent someone arguing that as it is not a cancellable agreement some other approach should be used to unwind what has already happened. Does that make sense?

[m55dlc]

The issue here is that the agreement is executed in the shop, before credit checks are taken. The sales assistant signs the agreement and then it is sent off for processing. If the application for a card is successful, they issue the card and the agreement starts from the date on the card carrier. If the application for a card is declined and no instant credit is supplied, the agreement is already executed and so GE Capital must surely be bound to provide empty statements from that point on.

 

What I'm getting to here is that the agreement doesn't exist until there is a decision to supply the card, and the 'agreement' does not contain the date the card is issued ('the agreement continues from that date') and so the reverse of this is that the agreement would be terminated if the card is not issued. Therefore the agreement never actually existed until the card is issued. There is no mechanism to charge monies to the account without the card, therefore how can the account exist without the card?

 

Also, on the first page of the application it mentions Card, whereas on the part where the signatures are (different sized paper, without all of the prescribed items, obviously a part of a greater whole - so where is the rest of the whole?) it mentions account. I'm bemused and this is definitely misleading.

[The Lantana]

I think the point you are making m55 is that you signed an 'invitation to treat' not an agreement.

 

Because the card issuer had yet to 'consider' your application it doesn't amount to a contractual offer by the card issuer and therefore your first signature cannot amount to acceptance.

 

Now IMHO there is no reason why an application form cannot become an executed agreement if it contains all the prescribed terms, but more learned CAGer's may be able to clarify this.

 

Also IMHO, accepting a form may be 'dual purpose' it must then require your second signature for execution by you (unless the CCA74 says different). Otherwise you're left open to acceptance of any 'offer' they see fit. I'm thinking out loud here.

 

Read about 'invitation to treat' here: Invitation to treat - Wikipedia, the free encyclopedia

 

 

Regards

 

 

Lantana

[Peterbard]

Can I ask a stupid question? Does an executed agreement need to be signned by an authorised signatory of the creditor in order to be valid?

If by valid you meen enforceable an executed agreement without the creditors signature but with all the other prescribed terms can be enforced only by the order of the court.

 

Peter

[Peterbard]

I think the point you are making m55 is that you signed an 'invitation to treat' not an agreement.

 

Because the card issuer had yet to 'consider' your application it doesn't amount to a contractual offer by the card issuer and therefore your first signature cannot amount to acceptance.

 

Now IMHO there is no reason why an application form cannot become an executed agreement if it contains all the prescribed terms, but more learned CAGer's may be able to clarify this.

 

Also IMHO, accepting a form may be 'dual purpose' it must then require your second signature for execution by you (unless the CCA74 says different). Otherwise you're left open to acceptance of any 'offer' they see fit. I'm thinking out loud here.

 

Read about 'invitation to treat' here: Invitation to treat - Wikipedia, the free encyclopedia

 

 

Regards

 

 

Lantana

 

An application form cannot be used as an executed agreement . Appart from anything else it must be headed Credit Agreement regulated under***

Also a prospective agreement cannot be made and then sent to e credit scored.

 

Peter

[saxon]

Hello, a long time ago I used to work in House of Frazer, I used to get people to sign for these store cards, after filling in the details I would then telephone GE whoever, and they would say yes or no to the credit.

My point is do shops not do that now?

If it was declined, I had to write cancelled accross the whole sheet and hand 1 copy to customer.

But the forms had all the information on from what I can remember,

 

I have to add, I didn't know then what I know now.

[paulwlton]

An application form cannot be used as an executed agreement . Appart from anything else it must be headed Credit Agreement regulated under***

Also a prospective agreement cannot be made and then sent to e credit scored.

 

Peter

 

Peter

 

I thought if a document which contained all the correct prescribed terms would suffice as an agreement whether it be an application form or not.

 

Paul

[joneshousehold]

Paul, I think the problem is the interaction with S59 which voids an agreement if it is a prospective regulated agreement. There has been some discussion about whether an application form is such a prospective regulated agreement and as such cannot be treated as a regulated agreement in itself.

 

Do you know, I so want to sign myself as Mary but then I am sad enough to know about Peter, Paul and Mary (and it wouldn't be my name either... just in case the MIB started looking)

[m55dlc]

Hello, a long time ago I used to work in House of Frazer, I used to get people to sign for these store cards, after filling in the details I would then telephone GE whoever, and they would say yes or no to the credit.

My point is do shops not do that now?

If it was declined, I had to write cancelled accross the whole sheet and hand 1 copy to customer.

But the forms had all the information on from what I can remember,

 

I have to add, I didn't know then what I know now.

 

So, why would a card not subsequently be issued by GE? They reserve the right not to issue a card. I'm also interested in how you (as a store assistant) are allowed to execute the agreement? Your take / knowledge is invaluable and I'd like to get to the bottom of this (obviously).

[m55dlc]

Term

 

When you get a chance, could you re-read the agreement I sent you. Look on the first page, all of the boxes have a number present, indicating stages that need to be undertaken, yet on the signature page, these numbers are not present ... smacks of it being different to me. Also, if you look on the front page, the authority code hasn't been filled in, indicating the sales assistant hasn't contacted GE for authorisation. Therefore, the sales assistant has basically executed an agreement that hasn't been authorised by GE!

 

The sig page is a quarter the size of the other page (erm, so where the heck is the rest of that page?) and the formatting is different. Is it from the same document? I don't think so.

 

I may have to win this by attrition, as I need to prove it is incorrectly executed before they will back down over s85 (IMO s85 requires a NON-EXECUTED agreement to be won (or before I'd feel comfortable arguing it)).

[saxon]

So, why would a card not subsequently be issued by GE? They reserve the right not to issue a card. I'm also interested in how you (as a store assistant) are allowed to execute the agreement? Your take / knowledge is invaluable and I'd like to get to the bottom of this (obviously).

 

Hello, it was a House of Frazer store card, as an employee, I assume (probably wrongly) that I would have had the authority to do so.

However a telephone call had to verify whether or not credit could be given. An account number would then be given to me to put onto the form. I would then issue a temporary card, so the customer could use it there and then, in any part of the store.

[Peterbard]

Peter

 

I thought if a document which contained all the correct prescribed terms would suffice as an agreement whether it be an application form or not.

 

Paul

No it has to be in the correct form as well.

 

Peter

[m55dlc]

Hello, it was a House of Frazer store card, as an employee, I assume (probably wrongly) that I would have had the authority to do so.

However a telephone call had to verify whether or not credit could be given. An account number would then be given to me to put onto the form. I would then issue a temporary card, so the customer could use it there and then, in any part of the store.

 

That's kind of how I remember my Burtons Group card circa 97. But we're talking about a GE card circa 92. The account numbers are pre-printed on the stationary and there isn't a temporary card. There is space for sales code and authority code, both incomplete on this agreement. I'm thinking along the lines that as the sales assistant hasn't filled in these boxes, there is no guarantee / requirement for them to phone up for a credit search. Therefore, the agreement has been executed incorrectly. That's what I'm hoping.

 

This bit is bugging me now...

 

Each section (name, address, employment, bank details, cards held etc) has a number, yet on the signature sheet, these do not. The sheet headed 'Credit Agreement Regulated...' has all of the hand written details on it, is A4, the other (with the sigs) is A6 (roughly - about a third of a sheet of A4). The numbering of the boxes on the agreement page is missing, the sig page contains the interest rate bits, the statement about credit limits, the boxes on DP and your right to cancel, but doesn't state 'Credit Agreement Regulated ... ' and has absolutely nothing else (like a pre-printed account number, a name, an id or any other reference) to link it to the other sheet.

 

This sig page is completely alien and could be from anything.

[saxon]

That's kind of how I remember my Burtons Group card circa 97. But we're talking about a GE card circa 92. The account numbers are pre-printed on the stationary and there isn't a temporary card. There is space for sales code and authority code, both incomplete on this agreement. I'm thinking along the lines that as the sales assistant hasn't filled in these boxes, there is no guarantee / requirement for them to phone up for a credit search. Therefore, the agreement has been executed incorrectly. That's what I'm hoping.

 

This bit is bugging me now...

 

Each section (name, address, employment, bank details, cards held etc) has a number, yet on the signature sheet, these do not. The sheet headed 'Credit Agreement Regulated...' has all of the hand written details on it, is A4, the other (with the sigs) is A6 (roughly - about a third of a sheet of A4). The numbering of the boxes on the agreement page is missing, the sig page contains the interest rate bits, the statement about credit limits, the boxes on DP and your right to cancel, but doesn't state 'Credit Agreement Regulated ... ' and has absolutely nothing else (like a pre-printed account number, a name, an id or any other reference) to link it to the other sheet.

 

This sig page is completely alien and could be from anything.

 

I worked there in 1999/2000, the forms were triplicate, I remember the pink top sheet was double sided, which went to the customer, but I had to put on the form how much credit limit was and their account / reference number, if the phone call said no the aggreement was written as cancelled staight across diagnally so there could be no mistake and again the customer got a copy, but that was one store.

 

I wasn't able to get an account, my history not good enough, so can't refer to a copy, sorry, and my memory isn't what it should be.

[m55dlc]

Thanks for the input Saxon, much appreciated. It is interesting that they apparently work in a different way in 1999, as it gives me something to argue against now. Thanks again

[saxon]

my history is still carp, would you, like me to try and get an agreement for you?

[m55dlc]

Yes please, that would be very helpful. PM me for my email address.

 

Thanks