Cap1 & CCA return

[sequest]

Does putting 'Account in Dispute' hold any legal sway now.

It seems many people, including myself, have been taken to court while the account is being disputed. If it does, then what are the remedies for the consumer if action is taken during this disputing period?

 

Thanks.

[simon the poet]

Does putting 'Account in Dispute' hold any legal sway now.

It seems many people, including myself, have been taken to court while the account is being disputed. If it does, then what are the remedies for the consumer if action is taken during this disputing period?

 

Thanks.

 

 

No i don't recall seeing anything in the regulations regarding agrements in dispute, although i have seen it used in OFT guidlines.

 

The term cannot be enforced whilst********* is used in the cca a lot

but i think that since the Rankine judjement it has been accepted that the enforcement begins in the court so the creditor can do really anything he likes regarding pursuing the debt right upto proceedings begin.

 

Simon

[Having_A_Knightmare]

Hi

 

RE section 106 113

 

Sorry HAK i was under the impression it was a secured loan must have been thinking of another one .

 

Peter

 

No probs Peter.

 

When I get a spare second I will start a thread on this as I think it is going to get quit entertaining!!!

 

HAK

[Peterbard]

No probs Peter.

 

When I get a spare second I will start a thread on this as I think it is going to get quit entertaining!!!

 

HAK

 

Hi

 

I should imagine there are some serious bol****s going on at your bank right about now.

 

Peter

[conar686]

If signed on the premises, there will be no cancellation rights. (s.67(b))

 

Cheers, that's what I thought

 

No, but this would mean improperly executed because of s.60(1)©, but still enforceable by s.127(3). (Remedies being a required, but not prescribed, term)

 

Ok that gives me something to gain time untill FOS sorts my PPI claim

 

The APR looks right, but it's tiered because of the introductory period rate so I may be wrong there.

 

Wasn't holding out much hope there it look ok to me too but I'm not an expert

 

Their going to say this is an internal reference number and not the date the form was introduced, aren't they?

 

Yeah thought so too, just wanted a second opinion

 

Is it the same agreement? I can't see how their linked if not.

No unfortunately its not, so the question was probably nugatory

 

HTH

 

Thanks for the responses pal

[Viscount Stair]

Premises: what are they and whose are they?

 

Remember that time you went round the local show, fair or exhibition and that nice person offered you a cuddly toy in return for you filling out some details and it turned out you got a free MBNA credit card with every cuddly toy.

 

Was their tent or stand "premises"? (If so, was it MBNA's premises?)

 

And then, remember that other time some nice person came up to you at the football, rugby or shinty match and suggested how much more of a supporter you would be if you took out a credit card from your club (and you didn't even know they had a consumer credit licence).

 

Was the ground MBNA's premises?

 

And that other time as well, you had three minutes left at Luton Airport before you get that cameo role on Airline you've always craved and you do whatever you have to do to get past that man standing between you and the check out desk?

 

Was Luton Airport (or even just the bit of the concourse being patrolled by the canvasser) MBNA's premises?

 

All potentially relevant to the question of cancellation rights, I think.

 

I think that all three could be argued either way but that the first probably tips towards MBNA and the other two against them.

 

Thoughts?

[Peterbard]

Premises: what are they and whose are they?

 

Remember that time you went round the local show, fair or exhibition and that nice person offered you a cuddly toy in return for you filling out some details and it turned out you got a free MBNA credit card with every cuddly toy.

 

Was their tent or stand "premises"? (If so, was it MBNA's premises?)

 

And then, remember that other time some nice person came up to you at the football, rugby or shinty match and suggested how much more of a supporter you would be if you took out a credit card from your club (and you didn't even know they had a consumer credit licence).

 

Was the ground MBNA's premises?

 

And that other time as well, you had three minutes left at Luton Airport before you get that cameo role on Airline you've always craved and you do whatever you have to do to get past that man standing between you and the check out desk?

 

Was Luton Airport (or even just the bit of the concourse being patrolled by the canvasser) MBNA's premises?

 

All potentially relevant to the question of cancellation rights, I think.

 

I think that all three could be argued either way but that the first probably tips towards MBNA and the other two against them.

 

Thoughts?

 

Hi

I think all of those would be unlawful anyway and therefore void the CCA section 49.

 

As stated agreements signed on trade premises do not carry any cancellation rights.

 

There is an intersting case going on currently however where a lender is arguing cancellation rights on just such an agrement under the distance marketing regulations on the grounds that the creditor was not there at the execution of the document because it was signed at the supliers car showroom.

 

Peter

[Viscount Stair]

I had forgotten about section 49 when the discussion about cancellation rights prompted my musings about premises.

 

I have had a look at section 49 and I can see that an offence is committed but I need to make the jump from that to the agreement being void.

 

I also had a look at the definition in section 48 and I would be worried by the exception in s48(2):

 

A place is excluded from subsection (1) if it is a place where a business is carried on (whether on a permanent or temporary basis) by— (a) the creditor or owner, or

 

(b) a supplier, or

 

© the canvasser, or the person whose employee or agent the canvasser is, or

 

(d) the consumer.

 

Taking my three examples in turn:

 

I think the fair/show/exhibition is almost certainly a place where the canvasser's employer is carrying on a business temporarily.

 

I don't think that the club is either a creditor or a supplier for the purposes of its branded card but I wonder whether the ground is a place where the canvasser or his/her employer is carrying on a business temporarily and, if the canvasser is a club employee, then the exception definitely applies.

 

The airline would not be the creditor just because it brands the card but it might be a supplier if the lure on that occasion is a free flight or loyalty points for the airline. Again, I wonder as well whether the canvasser or his/her employer is carrying on a business at the airport temporarily and, if the canvasser is an airline employee, the exception definitely applies.

 

Attractive though the section 49 point seems, I would be worried about hanging my defence too heavily on it.

 

If this has been covered before (or even done to death before), I am sorry and would be grateful for a pointer in the right direction.

 

Thanks, Peter, for reminding me about section 49 and anything further you have on that will be gratefully received.

[MAGDA]

Hi

I think all of those would be unlawful anyway and therefore void the CCA section 49.

 

As stated agreements signed on trade premises do not carry any cancellation rights.

 

There is an intersting case going on currently however where a lender is arguing cancellation rights on just such an agrement under the distance marketing regulations on the grounds that the creditor was not there at the execution of the document because it was signed at the supliers car showroom.

 

Peter

 

Hi Peter, so would that scenario also apply to store cards, where a third party (the person working in the store) initiates the agreement and the creditor (GE Money, for example) is not present and it isn't actually signed on the creditor's premises. Magda

[Viscount Stair]

If the agreement says it is cancellable, even if it wouldn't have been otherwise, doesn't that make it cancellable anyway?

 

I should know this by now but can't remember what conclusion was reached the last time this came up.

[pt2537]

If the agreement says it is cancellable, even if it wouldn't have been otherwise, doesn't that make it cancellable anyway?

 

I should know this by now but can't remember what conclusion was reached the last time this came up.

no it wouldnt unless its cancellable within the definition given in the Act.

 

See Rankine vs MBNA (Court of Appeal)

[Viscount Stair]

Thanks for the pointer. Any thoughts on the premises issues, PT?

 

PS It's not just academic interest, because it is relevant to a spat Mrs VS has with MBNA. But if it has wider interest for others, even better.

Edited April 19, 2009 by Viscount Stair
Adding PS

[car2403]

Thanks for the pointer. Any thoughts on the premises issues, PT?

 

PS It's not just academic interest, because it is relevant to a spat Mrs VS has with MBNA. But if it has wider interest for others, even better.

 

I think you're on a hiding to nothing, there, IMHO. The definition of cancellable agreements is outlined in the Act and, as Paul says, unless it fits the definition, it isn't cancellable.

[Viscount Stair]

I thought not and it is not the main plank by any means but I thought it worth exploring. Thanks!

[patrickq1]

the question in below is if the agreement below was subject to a loan ,but the loan turned into an overdraft for a three month period only,

during the loan period it was(the loan) frustrated bu the gross interferance of the bank

ie.bounced cheques when suficient funds available..

rung suppliers in both and eu which subsequently led to the withdrawl of credit facilities with those companies.

demanded i sell my goods for a loss in order to repay the loan..

i am using this as my defence but also the bank have not been in touch for 15 years

is the agreement still valid ...the first part of the loan agreement is here this comes under CCA but no one can verify this as yet ?

nwb1019(revised December 1989)Guarantee Sterling and Currencey by

individual or company

TO national westminster bannk plc

in consideration of national westminster bank plc (the Bank)giving time credit banking facilities and/or other accommadation to

COMPANY……………………………………………… …………………………………………………… .

REGISTERED OFFICE………………………………………………… ……………………………………………….( THE DEBTOR)

NOW

NAME…………………………………………………… … ………………./…………………………………………………… …………… ………….

ADDRESS……………………………………………… …………………………………………………… …………… …(THE GUARANTOR)

A. hEREBY GUARANTEE PAYMENT TO THE bANK ON DEMAND OF

B. ALL LIABILITIES OF THE DEBTOR TO THE BANK(IN WHATEVER CURRENCEY DENOMINATED)HOWSOEVER ARISING WETHER

C. PRESENT FUTURE ACTUAL OR CONTINGENT AND WETHER INCURRED SOLELY SEVERALLY OR JOINTLY AND AS PRINCIPAL OR SURETY.

(a)Provided that the total amount of such liabilities recoverable under thi guarantee shall not exceed the sum of

-twenty thousand pounds- (the limit)

(delete words commencing or other such sum amount of limit where only sterling lianilities are involved)

or such other sum or sums expressed in any currencey as shall at date of demand represent liabilities of the debtor to the bank the total equivalent of which in the currencey of the limit (by referance to the Banks spot rate of exchange)did not when such liabilities were or in relation to several currencies the last liability was incurred exceed the amount of the limit

and(b) all liabilities of the debtor to the bank on account of intrest on such sum or sums up to the date of default in repayment thereof by the debtor commission and banking charges relating thereto and all legal and other costs and expenses (on a full indemnity basis) howsoever incurred by the bank in connection therewith and so that as against the guarantor intrest shall be deemed to continue to accrue and be a liability of the debtor hereby secured notwithstanding that for any reason intrest may have ceased to accrue against the debtor and

(ii)Agrees to pay the bank intrest on the amounts demanded under (a) and (b) above from demand hereunder until full discharge such intrest to be chargable at the rate of intrest payable or deemed to be payable by the debtor(wether before or after judgement) as calculated and compounded in accordance with the practice of the bank from time to time together with all legal and other costs and expenses(on a full indemnity basis) howsoever incurred by the bank in connection with this guarantee.

the cost and expenses referred to herein shall include (for the avoidance of doubt)all amounts the bank may from time to time require to compensate it for its internal management and administration costs and expenses incurred in connection with the enforcement of this guarentee and recovery of all liabilities secured by it.a certificate signed by an officer of the bank as to the amount of such costs and expenses incurred by the bank from time to time shall for all purposes be conclusive evidence against and binding upon the guarantor.

the guarantor confirms as follows:

(1) the bank may without any consent from the guarantor and without affecting the guarantors liability hereunder renew vary or determine any accomadation given to the debtor hold over renew modify or release any security or guarantee now or hereafter held from the debtor or any other person including any other person liable under this guarantee in respect of the liabilities hereby secured and grant time or indulgance to or compound with the debtor or any such person and this guarantee shall not be discharged nor shall the guarantors liability under it be affected by anything which would not have discharged or affected the guarantors liability if the guarantor had been a principal debtor to the bank

(2) this guarantee shall be additional to any other guarantee or security now or hereafter held in respect of the moneys hereby secured

(3) this guarantee shall be continuing security and shall remain in force notwithstanding any disability or death of the guarantor until detemined by three months notice in writing from the guarantor or personal representative of the guarantor but notwithstanding such determination the guarantor shall remain liable as guarantor for all liabilities of the debtor outstanding(wether or not due and payable)at the date of the expiration notice.

(4) the guarantor has not taken and will not take without written consent of the bank any security from the debtor in connection with this guarantee and any security so taken shall be held in trust for the bank and as security for liability of the guarantor to the bank hereunder.

(5) in respect of the guarantors liability hereinafter the bank shall ha ve lien on all securities or other property of the guarantor held by the bank wether for safe custody or otherwise .the bank shall further be entitled (as well before as after demand hereunder)to set of against any credit balance in any account of the guarantor with the bank (wether current or otherwise or subject to notice or not)and against any intrest accruing thereon the liability of the guarantor to the bank hereunder and if the liability or any part hereof is in different currency from a credit balance against which the the bank seeks to set it of the bank shall be entitled to utilise currency of the account in credit for the purchase at its spot rate of exchange of an amount in the currency of the liability not exceeding the amount of such liability and also to pay out of the credit balance any additional sum which the bank may be required to pay such currency.

(6) (a) this guarantee shall apply to all of the above mentioned liabilities of the debtor to the bank and shall not be affected by any fluctuation in or intermediate discharge of such liabilities and until such liabilities have been discharged in full the guarantor shall not be entitled to share in any security held or money received by the bank on account of such liabilities or to stand in the place of the bank in respect of any security or money nor until such liabilities have been discharged in full shall the guarantor take any step to enforce any right or claim against the debtor in respect of any moneys paid by the guarantor to the bank hereunder or have or exercise any rights as surety in competition with the bank

(b)any moneys received by the bank in connection with this guarantee may be placed to the credit of a suspense account and such receipt shall not affect the right of the bank to claim or prove against the debtor (or any other liabilities or persons liable)for the entire amount of the liabilities of the debtor .such moneys or any part may at the banks option be applied in or towards discharge of such liabilities of the debtor as the bank may in its absolute discretion determine

 

(7) if this guarantee is determined or called in by demand made by the bank the bank may open a new account or accounts with the debtor or any other persons for whose liabilities this guarantee is available as security .if the bank does not open a new account it shall nevertheless be treated as if it had done so at the time of determination or calling in and as from that time all payments made to the bank shall be credited or treated as having been credited to the new account and shall not operate to reduce the amount for which this guarantee is available as secuurity at that time.

( this guarentee shall not be discharged nor shall the guarantor ‘s liability be affected by reason of any failure of or irregularity defect or informality in any security given by or on behalf of the debtor in respect of the moneys or liabilities hereby secured nor by any legal limitation bar or restriction disability icapacity or want of any borrowing powers of the debtor or want of authority of any director manager official or other person appearing to be acting for the debtor in any matter in respect of the moneys or liabilities hereby secured or be any supervening matters rendering the performance of the obligations of the debtor illegal in any jurisdiction and such moneys or liabilities will be recoveable by the bank from the guarantor as sole or principal debtor.

(9) where there is more than one person comprised in the term “the debtor” reference to the debtor shall where the context admits take effect as refence to such persons or any of them and where the debtor is a firm shall include the person or persons from time to time constituting the firm wether or not under the same style or firm name and generally where the context so admits the singular will include the plural

(10) where this guarantee is entered into by more than one person the agreements and obligations on the part of the guarantor herin contained shall take effect as joint and severall agreements and obligations and all references to the guarantor shall take effect as references to the said persons or any of them and none of them shall be released from liability hereunder by reason of this guarantee failing or ceasing to be binding as a continuing security on any others of them.

(11) payment shall be in the currency in which the liabilities of the debtor were owing or incured or (if that currency is other than sterling)at the option of the bank in sterling such other currency being converted into sterling at the spot rate of exchange of the bank for purchasing such currency with sterling prevailing on the date of actual payment and the guarantor herby agrees to indemnify the bank against the full sterling price(including all costs charges and expenses).

(12) a certificate by an officer of the bank as to the amount for the time being due from the debtor to the bank as to the intrest after demand from time to time payable hereunder or as to its applicable spot rate of exchange shall be conclusive evidence for all purposes against the guarantor

(13) a demand or notice hereunder shall be in writing signed by an officer or agaent of the bank and may be served on the guarantor either by hand or post. in the case of a company service by hand may be made either by delivering the same to any officer of the company at any place or leaving the same addressed to the company at its registered office or a place of business last known to the bank. a demand or notice by post may be addressed to the guarantor at the registered office or address or place of business last known to the bank and shall be deemed to have been received on the day following the day on which it was posted and shall be effective notwithstanding it be returned undelivered and notwithstanding the death of the guarantor.

(14) any settlement or discharge between the guarantor and the bank shall be conditional upon no security or payment to the bank by the debtor or any other person being avoided or reduced for any reason and the bank shall be entitled(subject to any limit in the total amount recoverable under this guarantee) to recover the value or amount of any such security or payment from the guarantor subsequently as if such settlement or discharge had not occurred ,any liability of the guarantor under this clause(wether actual or contingent)shall be a liability in respect of which the bank may exercise the right created by clause (5) hereof.

(15) this guarantee is and will remain the property of the bank

(16) this guarantee shall be governed by and construed in accordance with the laws of england.

 

one agreement for the loan/overdraft and one for title to our property

THIS LEGAL MORTGAGE IS MADE THE (DATE………2…………..) DAY OF(…………OCT……………………….

ONE THOUSAND NINE HUNDRED AND ……………NINETY……………………… ……………

NAMES…………………………………………………… …………………………………………………… …………… ……………………………

ADDRESS……………………………………………… …………………………………………………… …………… ……………………………….

(THE MORTGAGOR)OF THE ONE PART AND NATIONAL WESTMINSTER BANK PLC (the bank) of the other part.

1 if the expression “the mortgagor” includes more than one person it shall be construed as refering to all and/or

any one or more of those persons and the obligations of the mortgagor shall be joint and several.

2 (a)the mortgagor as beneficial owner charges by way of legal mortgage all and every interest in or over the property referred to in the schedule hereto which the mortgagor has power at law or in equity so to charge (the mortgaged property)and /or the proceeds of sale thereof as a continuing security to the bank for discharge on demand of:

(i)all present and/or future indebtedness of the mortgagor to the bank on any current and/or other account with interest and bank charges and.

(ii)all other liabilities whatsoever of the mortgagor to the bank present future actual and /or contingent and

(iii)all costs charges and expenses howsoever incurred by the bank in relation to this mortgage and such indebtedness and/or liabilities on a full indemnity basis

and for the payment of interest on the foregoing day by day from demand until full discharge(as well after as before judgement)at the rate payable or deemed to be payable by the mortgagor and as calculated and compounded in such a manner as the bank may from time to time determine .

the costs and expenses referred to herein shall include (for avoidance of doubt)all accounts the bank may from time to time require to compensate it for its internal management and administrative costs and expenses incurred in connection with the enforcement of this mortgage and recovery of the liabilities secured by it .a certificate signed by an officer of the bank as to the amount of such costs and expenses incurred by the bank from time to time shall for all purposes be conclusive evidence against and binding upon the mortgagor.

(b) this security shall not extend or apply to any obligations under a regulated agreement except:

(i)a regulated agreement which embodies this security as required by the consumer credit act 1974(“the act”)

(ii)a regulated agreement to which the provisions of part v* of the act do not apply at the date hereof including (but not by way of limitation)an agreement to overdraw on a current account within the meaning of the act

for the purpose of this clause “regulated agreement” shall have the meaning given by the act but shall also include any agreement which or of which any part would but for this clause become a regulated agreement by virtue of this security and section 82 of the act

*PART V

ENTRY INTO CREDIT OR HIRE AGREEMENTS

Preliminary matters

55. Disclosure of information.

56. Antecedent negotiations.

57. Withdrawal from prospective agreement.

58. Opportunity for withdrawal from prospective land mortgage.

59. Agreement to enter future agreement void.

Making the agreement

60. Form and content of agreements.

61. Signing of agreement.

6

62. Duty to supply copy of unexecuted agreement.

63. Duty to supply copy of executed agreement.

64. Duty to give notice of cancellation rights.

65. Consequences of improper execution.

66. Acceptance of credit-tokens.

Cancellation of certain agreements within

cooling-off period

67. Cancellable agreements.

68. Cooling-off period.

69. Notice of cancellation.

70. Cancellation: recovery of money paid by debtor or hirer.

71. Cancellation: repayment of credit.

72. Cancellation: return of goods.

73. Cancellation: goods given in part exchange.

Exclusion of certain agreements from Part V

74. Exclusion of certain agreements from Part V.

 

©if the mortgagor is a company which has appropriate capacity (a company)the mortgagor also charges by way of floating security all movable plant machinery implements utensils furniture and equipment now and from time to time placed on or used in or about the mortgaged property with the discharge on demand of all moneys costs and interest as aforesaid and the expression the “mortgaged property” shall be construed accordingly.

(3)the mortgagor will keep the mortgaged property in a good state of repair and condition and will keep it insured against such risks and in such office and for such amounts as the bank may from time to time aprove.if the mortgagor fails to maintain or insure the mortgaged property the bank may do so at the expense of the mortgagor without thereby becoming the mortgagee in possesion.

(4)section 103 of the law of property act 1925 shall not apply to this mortgage and the statutory power of the sale ond other powers shall be exercisable at any time after demand

(5)if the mortgagor is not a company and is in the event of the bank taking possession of the mortgaged property the bank is hereby authorised as agent for the mortgagor to remove store sell or otherwise deal with any furniture or goods which the mortgagor shall fail or refuse to remove from the mortgaged property within seven days of being requested to do so by notice from the bank and the bank shall not be liable for any loss or damage occasioned to the mortgagor .the mortgagor shall indemnify the bank against all expenses incurred by the bank in relation to such furniture or goods and the bank shall account to the mortgagor for the proceeds of any such sale after deducting any such expenses.

(6) the statutory powers of leasing or of accepting surrenders of leases conferred on mortgages shall not be exercised by the mortgagor nor shall the mortgagor part with possession of the mortgage property or any part thereof nor confer upon any person firm or company or body whatsoever any licence right or interest to occupy the mortgaged property or any part thereof without consent in writing of the bank but the bank may grant or accept surrenders of leases without restriction.

(7) at any time after the power of sale has become exercisable the bank or any receiver appointed hereunder may enter and manage the mortgaged property or any part thereof and provide such services and carry out such repairs and works of improvement reconstruction addition or completion (including the provision of plant equipment and furnishings)as deemed expedient .all expenditure so incurred shall be immediately repayable by the mortgagor with interest at the rate aforesaid and shall be liability

( if the bank receives or is deemed to be effected by notice wether actual or constructive of any subsequent charge or other interest affecting any part of the mortgaged property and /or the proceeds of sale thereof the bank may open a new account or accounts with any person for whose liabilities this mortgage is available as security .if the bank does not open a new account it shall nevertheless be treated as if it had done so at the time when it received or was deemed to have received notice and as from that time all payments made to the bank shall be credited or be treated as having been credited to the new account and shall not operate to reduce the amount for which this mortgage is security.

(9) in case the mortgagor shall have more than one account with the bank it shall be lawful for the bank at any time and without any prior notice forthwith to transfer all or any part of any balance standing to the credit of any such account to any other account which may be in debit but the bank shall notify the mortgagor of the transfer having been made.

(10) none of the persons included in the expressions ”the mortgagor” shall as against the bank be entitled to any of the rights or remedies legal or equitable of a surety as regards the indebtedness or liabilities of any of the other persons included in the expression “the mortgagor”.

(11) a demand or notice hereunder shall be in writing signed by an officer or agent of the bank and may be served on the mortgagor either by hand or by posting the case of a company service by hand may be made either by delivering the same to any officer of the company at any place or leaving the same addressed to the company at its registered office or a place of business last known to the bank .a demand or notice by post may be addressed to the mortgagor at the registered office or address or place of business last known to the bank and shall be effective notwithstanding it be returned undelivered and notwithstanding the death of the mortgagor.

(12) if the mortgagor is a company the mortgagor certifies that this mortgage does not contravene any of the provisions of the company memorandum and articles of association and has been executed in accordance herewith.

(13)this mortgage shall be governed by and construed in accordance with the laws of england in witness whereof this deed has been executed by the mortgagor the day and year first before written.

the schedule

registered land hm land registry charge of whole

(county and district

(or london borough)

title number :

property

unregistered land

the ….free… hold property known as xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx

subject to a mortgage dated txxxxxxxxxxxxx1982 between xxxxxxxxxxxxx xxxxxxxxxxxxx and building society

 

 

*in the case of a second mortgage of unregistered land insert here “subject to a mortgage dated

between……………………………………………… ………….and……………………………… …………… ………………………..

(and delete the words and comprimised in the following documents”)

 

 

 

 

 

the common seal of

was }

hereunto affixed in the presence of

director

secretary

executed as a deed by the mortgagor

signature………………………………………. director

name in full……………………………………

signature………………………………………. .secretary

name in full……………………………………………..

signed and sealed and delivered

by the above named }

signature…………………………xxxxx

in the presence of

signature of witness xxxxxxxxxxx

name in full….xxxxxxxxxxxxxx

address………………………………….

………………………………………………

occupation. bank manager

signed and sealed and delivered }

xxxxxxxxxxxxxx

in the presence of sig of witness c xxxxxxx

occupation bank manager

[Peterbard]

Hi Peter, so would that scenario also apply to store cards, where a third party (the person working in the store) initiates the agreement and the creditor (GE Money, for example) is not present and it isn't actually signed on the creditor's premises. Magda

 

Hi

Haddnt thought about that magda like i say as far as i know this is still a grey area.

I suspect that it will be decided that the distance regs don't apply in the end we will have to wait and see.

 

Peter

[Peterbard]

I had forgotten about section 49 when the discussion about cancellation rights prompted my musings about premises.

 

I have had a look at section 49 and I can see that an offence is committed but I need to make the jump from that to the agreement being void.

 

I also had a look at the definition in section 48 and I would be worried by the exception in s48(2):

 

A place is excluded from subsection (1) if it is a place where a business is carried on (whether on a permanent or temporary basis) by— (a) the creditor or owner, or

 

(b) a supplier, or

 

© the canvasser, or the person whose employee or agent the canvasser is, or

 

(d) the consumer.

 

Taking my three examples in turn:

 

I think the fair/show/exhibition is almost certainly a place where the canvasser's employer is carrying on a business temporarily.

 

I don't think that the club is either a creditor or a supplier for the purposes of its branded card but I wonder whether the ground is a place where the canvasser or his/her employer is carrying on a business temporarily and, if the canvasser is a club employee, then the exception definitely applies.

 

The airline would not be the creditor just because it brands the card but it might be a supplier if the lure on that occasion is a free flight or loyalty points for the airline. Again, I wonder as well whether the canvasser or his/her employer is carrying on a business at the airport temporarily and, if the canvasser is an airline employee, the exception definitely applies.

 

Attractive though the section 49 point seems, I would be worried about hanging my defence too heavily on it.

 

If this has been covered before (or even done to death before), I am sorry and would be grateful for a pointer in the right direction.

 

Thanks, Peter, for reminding me about section 49 and anything further you have on that will be gratefully received.

 

Hi

 

err yes

seem to remember something about an agreement being made whilst an offence being comited being void probable not in the cca anyway i dont think it would be enforceable or would it not really thought about it i will though.

 

Peter

[Viscount Stair]

I'll be interested in what you come up with on this but I have to say that it looked less promising when I crunched the permutations of what are and are not trade premises in the scenarios I came up with.

[Peterbard]

I'll be interested in what you come up with on this but I have to say that it looked less promising when I crunched the permutations of what are and are not trade premises in the scenarios I came up with.

 

Hi

 

What abut this

 

173 Contracting-out forbidden

(1) A term contained in a regulated agreement or linked transaction, or in any other

agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made

under this Act.

 

In as much as every term in the agrement offerred would be inconsistant with provisions of section 49

 

hmmmmmm

 

Peter

[MAGDA]

Hi

Haddnt thought about that magda like i say as far as i know this is still a grey area.

I suspect that it will be decided that the distance regs don't apply in the end we will have to wait and see.

 

Peter

 

Thanks Peter, bit of wishful thinking on my part I think. Magda

[Nyhm]

Where was the loan taken out Katie. Agreements are only cancellable if the following apply:

 

Under the Consumer Credit Act 1974, certain credit agreements can be cancelled provided there were face-to-face negotiations before the agreement (the place where these took place is immaterial) and you didn't sign the agreement on the trade premises of the creditor or supplier (for example, you signed at home or in your office).

 

The following Link (post # 26) should be useful:

 

http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability-2.html

 

 

 

Just a quick note to say thanks to all that contribute advice to this site. It's made an interesting read over the last few hours!

 

My partner (now wife), signed a non-trade premises agreement with a British Gas rep back in April 04 (on behalf of First National Tricity). New boiler and other bits plus interest totalled £5236. We ran into financial difficulties, and have been making reduced payments via a debt management company since 2006.

 

I can only find page 4 of 5 of the agreement (unexecuted agreement). I was looking today in the hope we had taken some sort of extended warranty .... but alas, no joy. The boiler they fitted has caused nothing but problems .... and a few weeks ago, it sprang a leak in the manifold. Had a friend look at it, and he has told me I was looking at a £300-400 repair bill. He doesn't believe the boiler ever self regulated properly anyway, so that solved the mystery as to why Britsih Gas have been charging me £200 per bath!! ( ok ... i'm exaggerating a bit ).

 

The unexecuted agreement stated "You will have for a short time a right to cancel". I wonder if 6 years is classed as a "short time" !!!

 

Anyway, the agreement seems watertight. The Potterton boiler is not.

 

Hindsight is a great thing. Wish I had looked at boiler cover sooner. We live and learn don't we!

 

So wish me luck in the loft tomorrow as I drain the tank (bucket is getting a bit full). Will take a picture of the biggest spider I find and will send it to British Gas as a thank you for poor workmanship/over priced heating bills and damage to the steel frame structure of my house).

 

ttfn

 

"a tired and scared of spiders" Nyhm

[MAGDA]

Hi Nyhm,might be worth sending a CCA request anyway to get a copy of the complete agreement and posting it up - might be something you haven't spotted, you never know. Also, were the cancellation details sent out to you at that time? It is worth writing to British Gas and informing them that the boiler has not worked properly from the outset and nothing but problems. It should afer all be fit for the purpose intended. I know what you mean about the £200 bath, ours is a bit like that as well! Good luck, Magda

[Doc2527]

Perhaps I'm posting this in the wrong location.

Could someone have a look at this agreement for Littlewoods catalogue account, and let me know if it's enforceable.

This was sent to me by Cabot who are looking after this account.

This is the only form I got which was a photocopy.

 

Regards

 

Doc2527

LittlewoodsDCA.pdf

[Having_A_Knightmare]

Doc it looks enforcable to me

[Nyhm]

Hi Nyhm,might be worth sending a CCA request anyway to get a copy of the complete agreement and posting it up - might be something you haven't spotted, you never know. Also, were the cancellation details sent out to you at that time? It is worth writing to British Gas and informing them that the boiler has not worked properly from the outset and nothing but problems. It should afer all be fit for the purpose intended. I know what you mean about the £200 bath, ours is a bit like that as well! Good luck, Magda

 

 

 

Many thanks for the reply. Very much appreciated

 

We had no cancellation details posted or delivered to us. We were just given the 4th page of an agreement (unexecuted agreement) with the "You will have for a short time a right to cancel" notice at the top.

 

British gas delivered the "goods" 3 days later on the 8th of April 04 .... and they had finished installing everything 8 days after the initial loan agreement was signed. To be honest, had I of had a bit longer to muse, I would have probably gone done the route of getting the original boiler fixed, and not committed us to £5000 worth of debit. T'was all very quick .... and my brain at the time was not! :grin:

 

The debt is now being dealt with by a DCA / solicitors called Howard Cohen. A CCJ has already been granted, and they've taken a charging order out against the property (I never received a copy of that by the way .... even though I'm mortgaged on the house). The debt was in my wifes name.

 

So is it correct to assume it's too late to go down the CCA route? If not, who should I send the request to? First National Tricity or Howard Cohen?

 

I'm in the process of writing to British Gas now regarding the bills/boiler and it not being fit for purpose. So touch wood!

 

 

 

 

Have now drained the tank by the way .... not a spider in sight !

 

...... which is now leaving me wondering whether we have something bigger up in the dark eating them all !!! Might be a case for Mulder and Scully

 

 

 

Thanks for your time

 

 

Nyhm