Cap1 & CCA return

[Goldlady]

When was this agreement from RMW?

[reallymadwoman]

2001

[shane5408]

Hiya,

 

ok a few questions

 

Can you list the name / names of the creditor/s what appears on your statements, who you address any correspondance to, what name and address appears for them on your credit file.

 

If you have access to a scanner or camera it'd be useful to upload copies of any statements / agreements you have.

 

when you say you happened to get a copy of the agreement becuase it was on the same paper as a loan, can you elaborate a little bit more, is the loan held with the same creditor as the agreement, is it separate etc.

 

Only thing i can think of at present is that it may have been an in running credit agreement in the past ie a credit card but then at some point might have been refinanced into a loan possibly. I know some creditors try this to get a newly signed agreement.

 

regards,

shane

[Fred_Funk]

Hi Fred

 

can upload both agreements so we can take a look.

 

 

regards,

shane

 

Shane

 

I'm afraid I don't have access to a scanner right now.

 

Be that as it may, I would appreciate any thoughts you might have. The situation is exactly as I have described...

 

One of the loan agreements, HSL sent me a copy of has, clearly, been doctored since they first sent it to me back in April. Where it was unsigned by them it is now signed and where I'd inadvertently dated it incorrectly the date has now been altered to the correct one.

 

... I ought to add, it's clearly, a copy of the same agreement (I'm sure of this because in both I've initialed an error which I've corrected) but which has been doctored and differs significantly from the first document I was sent.

 

Someone suggested to me that Honours Student Loans are not governed by the Consumer Credit Act but, while I haven't yet had an opportunity to investigate whether or not that is the case, I can't believe they can be allowed to get away with doctoring loan agreements.

 

I'n not really sure how to proceed though I have wondered whether there might be any merit in applying to the courts for disclosure, ie HSL to hand over a copy of the original credit agreement. At this point, I could legitimately ask how it is that it differs from either one of the copies which was sent to me.

 

Any further thoughts gratefully received.

 

Fred_Funk

[reallymadwoman]

Hiya,

 

ok a few questions

 

Can you list the name / names of the creditor/s what appears on your statements, who you address any correspondance to, what name and address appears for them on your credit file.

 

If you have access to a scanner or camera it'd be useful to upload copies of any statements / agreements you have.

 

when you say you happened to get a copy of the agreement becuase it was on the same paper as a loan, can you elaborate a little bit more, is the loan held with the same creditor as the agreement, is it separate etc.

 

Only thing i can think of at present is that it may have been an in running credit agreement in the past ie a credit card but then at some point might have been refinanced into a loan possibly. I know some creditors try this to get a newly signed agreement.

 

regards,

shane

 

The creditors name doesn't appear on the statements but they were sent by Bank of Scotland and they are the creditor on my credit file.

 

The agreement is such a bad copy that it won't scan - I've tried before - but I've typed up the main points. The document has a dividing line down the middle of part of the page, the loan agreement is on the left hand side and the bank account on the right.

 

Preference Account

 

This is clearly a separate agreement from the loan, but the 'regulated by the CCA' bit is only on the loan side. Names and addresses are repeated.

 

Account Details

 

If there is a debit balance on your Account you must repay to us each month at least 5% of the total debit balance outstanding or £5 whichever is the greater, or the full balance if it is less than £5. In addition you must repay interest which will be calculated on a day to day basis for the month ending with the statement date. We must receive your minimum repayment within 14 days of the statement date.

Your authorised overdraft limit will be determined by us from time to time and notified to you. Your initial overdraft limit will be £2000.

If there is a debit balance on your account, interest will be calculated at 21.62% per annum, APR23.9%. We may vary the rate of interest but will give at least 7 days notice of such variation.

 

The Data Protection Act notice stretches across both halves of the page, then there's 'notice to customer' in a box again.

 

'By signing this agreement you:

a) acknowledge that if you do not keep up the payments due under this agreement you will become liable to pay any additional costs incurred by us in accordance with Clause 8 of the Conditions of Use overleaf;

b) telephone calls may be recorded ...

c) confirm that the information contained in this Application is true and accurate

d) request us to issue you with a Keycard ....'

 

Signed and dated by me on the same date as the loan, but by the bank 4 days after they signed the other bit. Above the signature box it says

 

'To ensure you receive your preference account please sign and date the box below. This offer is only open for a limited period of one month only.'

 

I applied for the loan, received a document to sign which I did, and sent it back at which point they sent me the cheque for the loan and what I thought was a credit card. I probably signed in both places on the agreement without even realising that the second space was another agreement. As I said before, I didn't have a clue that this was actually a bank account until I got a copy of the agreement. It hasn't been refinanced at all.

 

Many thanks for your help.

[Peterbard]

Hi,

I originally did a CCA request as I thought the account was for a credit card. Bearing in mind it was originally issued before debit cards were around, I had a plastic card, I got a monthly statement showing a minimum payment and 'available to spend' and it is described as a credit/store card on my credit file.

I've not had an official response to my CCA request, I just happened to get a copy of the agreement as it was on the same piece of paper as a loan. An S.A.R - (Subject Access Request) has just produced some, not all, of the statements.

However the agreement is actually for a bank account. There is no apparent means of making regular credits to the account, e.g. a salary, or paying standing orders or DDs from the account, and there was no paying in book, but it's definitely an agreement for a bank account with an overdraft.

Obviously it is actually a credit card, so why do it as a bank account? There must be some reason, good or otherwise.

 

Hi

If the card is related to an overdrat on a current account then it would be referred to as a debit card the bank would have to be very careful not to refer to it as a credit card in their T and cs. The ones I have seen have been.

 

An overdraft is coverred byt the cca 1974 as it is a running account credit arrangement how ever it is exempt from all sections contained within section V of the act.

 

The section that covers joint liability of the creditor and supplier is still available as this is containtid within section VI

 

What is not covered are the requirements for form and content(section 60) , section 58 pre contract cancellation rights, post contract cancellation notification and rights, secton 59 "agreement is void if", missuse and acceptance of credit tokens and of course the supply of copy agreements as per section 180

To sum up the main advantage is the that it makes section 65 and 60 redundant and in so doing removes the prtecion of haveing the agreement only enforceable by order of the court as well as the section 127 option.

This is combined with the effect of section 64 not applying so the none issuance of cancellation documents also is not a breach.

 

Best regards

Peter

[maybelline]

http://www.consumeractiongroup.co.uk/forum/students/100018-student-loan-deferment-conspiracy.html

 

Fredfunk, have a look at some of the Student Loan threads, I dont think HSL are regulated by the act but the earlier SLC were, someone jump in here if incorrect. good luck, maybe it is the 'true copy' stuff that will help. good luck.

[shane5408]

Hi Reallymadwoman,

 

some light reading for you:

Bank of Scotland - Review - Preference account DONT DO IT

 

 

It would seem that a loan from these people gets you a 'preference account' as well complete with overdraft!

 

 

 

regards,

shane

[shane5408]

Shane

 

I'm afraid I don't have access to a scanner right now.

 

Be that as it may, I would appreciate any thoughts you might have. The situation is exactly as I have described...

 

 

 

... I ought to add, it's clearly, a copy of the same agreement (I'm sure of this because in both I've initialed an error which I've corrected) but which has been doctored and differs significantly from the first document I was sent.

 

Someone suggested to me that Honours Student Loans are not governed by the Consumer Credit Act but, while I haven't yet had an opportunity to investigate whether or not that is the case, I can't believe they can be allowed to get away with doctoring loan agreements.

 

I'n not really sure how to proceed though I have wondered whether there might be any merit in applying to the courts for disclosure, ie HSL to hand over a copy of the original credit agreement. At this point, I could legitimately ask how it is that it differs from either one of the copies which was sent to me.

 

Any further thoughts gratefully received.

 

Fred_Funk

 

Hi Fred,

 

Looks like you're dealing with the worst kind of student loan company. Have a look at the link below

view from my pocket

 

I think your first port of call should be trading standards, as far as I;m aware Consumer Advice Direct now takes all calls for them and in my experience they're anything but helpful and knowledgable. Find your local trading standards address from Trading Standards Central - Trading Standards and Consumer Protection information for the UK and write to them explaining your situation.

 

With regards to ensuring they have 'the proverbial book thrown at them' all i can say is that it's been a long time coming! IMHO they are in breach of the fraud act, unjust enrichment, fraud via misrepresentation etc etc and a strongly worded letter mentioning this and the fact that it can be investigated by the Financial Crimes Branch at HM Treasury department will scare the hell ouf of them! Speak to trading standards first though. I'll leave you with the following extract from the Fraud Act:

 

All Theft Act deception offences are abolished to be replaced by 3 new fraud offences: fraud by misrepresentation.......f raud by failing to disclose information and fraud by abuse of position..

 

Under section 1 a person is guilty of fraud if they are in breach of any offences in sections 2,3,4.

Under Section 2 representation must be made dishonestly which is established under the two-stage test as set out in Rv Gosh (1982) QB 1053, 75 Cr App R 154 in which the defendant was dishonest by the standards of ordinary people

Subsection (1)(b) requires that the representation is made with the intention of making a gain for himself or causing a loss or risk of loss to another. Loss and gain are defined in section 5 as being money or property

Section 3: Fraud by failing to disclose information

18. Section 3 makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

 

More specifically, section 3 states:

3 Fraud by failing to disclose information

A person is in breach of this section if he-

(a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and

(b) intends, by failing to disclose the information-

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss

 

Gain and Loss Specified

5 "Gain" and "loss"

(1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.

(2) "Gain" and "loss"-

(a) extend only to gain or loss in money or other property;

(b) include any such gain or loss whether temporary or permanent;

Also a 'true' copy is only 'true' if it's signed

 

regards,

shane

[bfb]

this bank of scotland account is registered in default as a credit/store card and has all of the characteristics thereof

 

the conditions are set to contain all of the prescribed conditions under the agreements regulations so even if it was treated as a credit card rather than a current account it is likely to be valid

 

However there is very large question over why they chose not to be completely straight with it and include the references to the CCA etc

[reallymadwoman]

Hi

If the card is related to an overdrat on a current account then it would be referred to as a debit card the bank would have to be very careful not to refer to it as a credit card in their T and cs. The ones I have seen have been.

 

An overdraft is coverred byt the cca 1974 as it is a running account credit arrangement how ever it is exempt from all sections contained within section V of the act.

 

The section that covers joint liability of the creditor and supplier is still available as this is containtid within section VI

 

What is not covered are the requirements for form and content(section 60) , section 58 pre contract cancellation rights, post contract cancellation notification and rights, secton 59 "agreement is void if", missuse and acceptance of credit tokens and of course the supply of copy agreements as per section 180

To sum up the main advantage is the that it makes section 65 and 60 redundant and in so doing removes the prtecion of haveing the agreement only enforceable by order of the court as well as the section 127 option.

This is combined with the effect of section 64 not applying so the none issuance of cancellation documents also is not a breach.

 

Best regards

Peter

 

Hi Peter,

Thanks for your opinion. I can't actually read the terms and conditions of the agreement even with a magnifying glass as it is such a poor copy, so I can't confirm definitely that there is no mention of 'credit card', but I doubt it somehow. However the bank chooses to describe the card however, it most clearly is a credit card and is described as such by them on my credit reference file. I'm certain it has been deliberately misrepresented by the the bank, but I'm at a bit of a loss for how to argue that it's caused a problem other than, as they are now well outside the 12+30 for the CCA request, if it had applied, they would not at present be able to enforce if it was a regulated agreement, and if they can't produce a better copy than the one already supplied they may not be able to enforce at all.

I'm stumped!

[Peterbard]

Hi Peter,

Thanks for your opinion. I can't actually read the terms and conditions of the agreement even with a magnifying glass as it is such a poor copy, so I can't confirm definitely that there is no mention of 'credit card', but I doubt it somehow. However the bank chooses to describe the card however, it most clearly is a credit card and is described as such by them on my credit reference file. I'm certain it has been deliberately misrepresented by the the bank, but I'm at a bit of a loss for how to argue that it's caused a problem other than, as they are now well outside the 12+30 for the CCA request, if it had applied, they would not at present be able to enforce if it was a regulated agreement, and if they can't produce a better copy than the one already supplied they may not be able to enforce at all.

I'm stumped!

Hi R

 

I have had this discussion before and believe me i know how frustrating it is but i think you will find that they will contest it was a credit card and was an overdaught.

As i said on the previous occasion I hope i am wrong don't like giving people bad news.

 

Regards

Peter

[paulwlton]

Draft defence,

 

May be of interest re: recreated agreements.

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/11427-walton-rbos-20.html

[Peterbard]

HI

 

I dont know if it will be of any help but in order for the bank to make use of the section 74 determination the one that says they don't have to adhere to anything in secion V of the act. The creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement.You could try SAR ing this.

 

Best regards

Peter

[Opalie]

I apologize if this has been seen before, but can someone let me know if the agreements, mentioned here are enforceable, I have a feeling they are but just to be sure.

 

Thought this might be the best place to link them. I started reading this thread, but I think my attention to everything got a bit lost in wording and the size of the thread

 

http://i240.photobucket.com/albums/ff88/opalie/agreement_WORKED.jpg

 

http://i240.photobucket.com/albums/ff88/opalie/lloydstsb_worked.jpg

 

Thanks folks.

 

Op's

[shane5408]

I apologize if this has been seen before, but can someone let me know if the agreements, mentioned here are enforceable, I have a feeling they are but just to be sure.

 

Thought this might be the best place to link them. I started reading this thread, but I think my attention to everything got a bit lost in wording and the size of the thread

 

http://i240.photobucket.com/albums/ff88/opalie/agreement_WORKED.jpg

 

http://i240.photobucket.com/albums/ff88/opalie/lloydstsb_worked.jpg

 

Thanks folks.

 

Op's

 

Hi,

 

This is clearly a precontractual application form. for it to be enforcable at the very least it must be signed by the debtor and contain all the prescribed terms, them being Credit Limit, Rate of Interest and Repayments in this case. see http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability-7.html

for more detailed info (page 1)

 

Are the T&C's they sent you current from the time you took out the agreement? If not they have not complied fully with your CCA request as they are required to provide you with a true copy of the agreement 'and any other document referred to in it.'

 

From what i can make out the prescribed terms are stated in the t&c's. In my opinion this is not acceptable, My understanding of the REGS, more specifically Form and Content requirements in the regs propound the prescribed terms must be in the signature document itself, not in any other document regardless of whether it is referred to on the signature document. This is backed up by precedent set in Wilson v Hurstanger:

 

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 singlthat 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. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

 

Therefore unless the signature document is signed by the debtor and contains all the prescribed terms the judge is precluded from making an enforcement order under s127(3) of the act.

 

regards,

shane

[Opalie]

thanks Shane for responding to both my posts

 

This is my sisters card to be honest, but she doesn't remember signing anything else. And, even if she did, they should of responded with a copy of this I think?

 

I am not sure about the T & C's after all how many people even look at them, the documents we got looked oldish, so I am guessing they were either on the back of the application form or seperate. I am not certain if thier current T & C's look different.

 

This credit card is way out of control upto £10k and most of that she has been on DLA, and only met minimum payments, yet the limit rose.

 

She is very nervous that baliffs will start knocking on her door, and harrasing her, so i am trying to lead her through this. I pay her credit card for her, was paying £400 per month, but just reduced this to £60 per week.

 

We are going to go into Lloyds and have me added as a contact, so they cant harass her.

 

What do you suggest we do next?

 

ta

 

OP's

[shane5408]

She's on DLA and is having to pay £400 per month! Your sister only has to pay what she can realistically afford, especially with unsecured debts like credit cards. With regards to bailliffs you really shouldn't worry, Bailliffs can only be issued by the court once a County court judgement has been granted. They would only really ever be sent if you didn't show up to court and tried to evade the debt etc. if for whatever reason there was a CCJ then the court would simply order you to pay only what you can afford, no bailliffs whatsoever!!

 

Having read your thread i can see you're getting good advice from Rory, he can guide you through the steps. With regard to what to do next it really depends on what you want the outcome to be. As i stated I see the agreement as unenforcable so in theory you can stop paying them, however this would then lead to them most probably registering defaults, adverse credit data on your credit file. They might also pass it on to a debt collection agency as well. The defaults can be removed but is rather a drawn out process. I'll keep an eye on your thread, see how you get on. Oh and there should be a date somewhere on the T&C;s, that how you can check if they are current ones or not

 

kind regards,

shane

[Opalie]

Oh and there should be a date somewhere on the T&C;s, that how you can check if they are current ones or not

 

kind regards,

shane

 

Date on T & C is 1st October 2002, so looks original.

 

Going to stick on one thread now, so I don't confuse anyone or MYSELF:-D

 

Thanks for all the advise though, think I will wait for confirmation that what we have they think is the agreement, before I stop paying.

 

OP's

[Peterbard]

Date on T & C is 1st October 2002, so looks original.

 

Going to stick on one thread now, so I don't confuse anyone or MYSELF:-D

 

Thanks for all the advise though, think I will wait for confirmation that what we have they think is the agreement, before I stop paying.

 

OP's

Hi Yes t is a bit early to be worrying about baliffs.

As regards enforceablity i would becareful here,as Shane quite rightly states the schdule 1 + info for protection detatils shoud be included within the signature document ,as I am sure he is aware this can run over several pages and if the T and C's you have were on the back of the signature sheet you wil be hard pushed to prove that they wern't current,I couldn't see the credit limit or a note saying it would be allocated but perhaps thats because my eyes arn't what they used to be.

Also did yuo recieve your cancellation detais 7 days after you signed.

Really thes should be included in what was returned from your request as they are mentiond on the agreement.

 

Personally not withstanding the above I would be reticent to challenge this on unenforceability given that the T and cs are most likely current to the signature date.

I would attempt to reach an accomodation with the creditor.

Not something you would usually expect me to say, but you will be supprised what they will accept in these cases and again as shane so rightly says they can not expect you to pay what you cannot afford and the creditors know that if it went to court usually you can negotiate a very small payment indeed.

 

Best regards

 

Peter

[Opalie]

I couldn't see the credit limit or a note saying it would be allocated but perhaps thats because my eyes arn't what they used to be.

Also did yuo recieve your cancellation detais 7 days after you signed.

Really thes should be included in what was returned from your request as they are mentiond on the agreement.

 

 

Peter

 

Thanks Peter

 

I will check the credit limit bit when I come home from work.

 

Pretty certain she didn't get cancellation details.

 

I will let you know later.

 

Ta for the response.

 

Op's

[ian1969uk]

I don't like that document at all and most certainly would not trust it. I've blown it up in IE7 and those terms and conditions make no sense. There's a paragraph numbered 1 and a paragraph numbered 4, but nothing in between. It does include a statement about credit limit but it also refers to paragraphs 7 and 11 and these are nowhere to be seen. At best it's incomplete, at worst it's a cut and paste job.

[shane5408]

Hi Peter and all you other CCA experts!

 

Would like to get your opinion on something. The Regs don't definitively state that the prescribed terms as a matter of certainty must be in the signature document but, in my opinion they do seem to imply it. I know that other terms of the agreement and financial particulars can be within the embodying agreement which can be a separate document (t&c's) as long as that document is so referred to in the signature document. The relevant parts of the Regs are as follows:

 

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

(4) Subject to paragraph (5) below, the information about financial and

related particulars set out in paragraphs 3 to 19 of Schedule I to these

Regulations, and also the statements of the protection and remedies available

to debtors under the Act specified in Forms 5 to 10of Part I of Schedule 2, shall

be shown together as a whole in documents embodying regulated consumer

credit agreements and not interspersed with other information apart from

subtotals of total amounts and cross-references to terms of the agreement

 

Based on this alone there is not enough clear cut evidence, I don't think to have an alleged agreement which lacks prescribed terms but states them in t&c's classed as unenforcable by virtue of s127(3).

 

However, when you take into account the wilson v hurstanger Case, in particular point 33 of Lord Tuckey's judgement it does state quite clearly that 'core terms' meaning prescribed terms must be within the four corners of the agreement, furthermore that these terms 'cannot be found in another document.' This is precendent and binding on all lower county courts. I would think that for the above reasons if the signature document itself doesn't contain all prescribed terms (also taking into account they can be statements saying we will review your credit limit, to be determined etc etc) then 127 (3) applies when presented to a judge with Wilson v hurstanger as precedent.

 

PS signature document might be slightly misleading, what i mean is the agreement you signed which the creditor deems as the alleged agreement, in most circumstances it is simply a pre contractual application form.

 

regards,

shane

[Peterbard]

Hi Shane

 

The prescribed terms are required to be within the signature document as they make up part of schedule one.

All of this schedule and otheres are required to be within the document that includes the signature.

None of this information can be contained within another document and referred to or linked from the agreement. Other information can be, but not that itemised within the agreement regulations as to be included.

It is also a fact that an agreement can in a way be an application consider an agreement that is sent under section 62 (that is not executed on the signautre of the debtor) it has to go back to the creditor to be executed he then has the decision whether to accept and signe or decline and put it in the bin so in this respect it is an application.

It is not true however that an aplication can be an agreement if there is only the personal details of the applicants income and outgoings on the form and no description of how the agreement will opperate post contracurally as prescribed then it is not an agreement.

 

Best regard

Peter

[shane5408]

Hi Peter,

 

thanks for clarifying, I didn't take into account an agreement, signed by debtor, under s62 which would need to be sent to creditor who would need to sign and effectively accept application upon their execution.

 

So, regardless of the the correct t&c's being provided and them being current to the time a debtor signed the alleged agreement should that agreement be missing any/all prescribed terms it is unenforcable regardless of whether it says you agree to terms and condtions which are enclosed and those t&c's contain the prescribed terms. (also there are no statements saying we will review, determine credit limit, repayments etc on the alleged agreement)

 

regards,

shane