Cap1 & CCA return

[Peterbard]

Peter

 

You are forgetting what s127(3) actually says:

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

 

So, any document that contains all of the prescribed terms and the debtors signature will be considered by the court for enforcement - i.e. an improperly executed agreement may be ruled enforceable depending on the actual circumstances, but one that does not contain all of the prescribed terms and the debtors signature will not.

 

So my personal opinion is that a document that looks like an application form 'could' be ruled enforceable if it contains all of the prescribed terms and signature.

 

 

Regards, Pam

Yes i know it was me that deciphered it many moons ago but i am talkingabout(4)

[zubo]

Peter

 

You are forgetting what s127(3) actually says:

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

 

So, any document that contains all of the prescribed terms and the debtors signature will be considered by the court for enforcement - i.e. an improperly executed agreement may be ruled enforceable depending on the actual circumstances, but one that does not contain all of the prescribed terms and the debtors signature will not.

 

So my personal opinion is that a document that looks like an application form 'could' be ruled enforceable if it contains all of the prescribed terms and signature.

 

 

Regards, Pam

 

Pam

 

Someone else might have already argued this point, however:

(imo) an application is clearly pre-contractual in that you are responding to an offer to enter into an agreement. Your signature at this stage is simply a pre-contractual interest to enter the agreement based on the advertised conditions.

Indeed, it is at this stage that you would seek to alter or vary any of the conditions - including - if you value your privacy - consent to share your data. We know that there needs to be a number of steps to complete and prepare the agreement, one of these maybe consideration of any variation you require another is whether you are an acceptable risk and so on.

The contract is made by the finally determined agreement countersigned by the creditor and debtor.

So... despite what you quote, if you truly correctly interpret the application - THAT document cannot be deemed to be any form of agreement.

 

Furthermore even if I were to agree with you, whilst you quote s127(3) - there is also s127(4)(a) and (b) to consider whether any enforcement order would be given.

 

Z

[Peterbard]

From the OFT doc FAQs 2005 - in relation to calculating APR if the credit limit is unknown:

 

10.9 What do I assume for the amount of credit?

 

The amount of credit under a running-account credit agreement is taken to be the credit limit. This should generally be known by the creditor when the agreement is presented or sent to the debtor for signature, even if it is not stated in the document – see Q3.11.

If the credit limit is unknown at the date of making the agreement, Sch 7 para 1(1) provides that the amount of credit must be assumed to be £1,500 or, where the credit limit will be less than £1,500, an amount equal to that limit – but see Q10.12. This overrides any relevant assumption in the TCC Regs.

ArRegards, Pam

 

 

Are you saying the agreement is post 2005 oh goody that opens up a whole new load of reasons why it is not enforceable.

 

Peter

[Peterbard]

Hi Pam me again

 

1. 8.13 Do I have to state the APR?

The APR is not included in the list of prescribed terms in Sch 6. This means that if the APR is missing or incorrect, the court is not precluded by s127(3) from making an enforcement order, provided that the rate of interest is stated if required (see Q8.6).

However, the agreement would be improperly executed (see Q1.19), and so would be enforceable against the debtor only with a court order. S127(1) requires the court to dismiss an application for an enforcement order if it considers it just to do so, having regard to prejudice caused to any person by the contravention in question and the degree of culpability for it – see Q1.20.

Don't worry i will translate it means that not quoting the APR means the nast men might be trying to get a way with not giving all the info.

Peter

[zubo]

My only other observation Pam is that the document you are quoting from, whilst created and undoubtedly checked and verified is truly interpretative.

 

The opening pages contain the disclaimer:

 

This booklet gives general guidance. If you are unsure about how your business is affected, you should refer to the Act and the Regulations themselves and, if necessary, seek professional advice.

 

I would prefer to cross-reference the Act and interpret how I believe that was written and be prepared to argue my point at court, because as we all know it is that interpretation which is going to count.

 

Z

[Peterbard]

Hi Posted this earlier perhaps you didn't see it pam read it i will explain it afterwards.

 

What about rate-for-risk pricing?

 

 

A product may have more than one possible APR according to the amount or duration of credit or for other reasons. For example, different interest rates and/or charges may apply to debtors in different circumstances on the basis of rate-for-risk pricing.

However, each individual agreement may have only one APR – see Q3.65. In the OFT’s view, the document which the debtor signs must contain the APR applicable to that particular agreement. If it does not, the agreement is not properly executed and can be enforced against the debtor only with a court order – see Q1.19.

 

It Means that an agreement cannot be made if the APR being applied is down to the risk(Credit Score) only an applicatio.

Now the agreemnt se are talking aboput has anarrangement of APRs which will depnd on the credit limit issue which,youve guessed it will depend on the credit score.eg Unenforceable w.c.o agreement on yet another score.

 

Hope thats clear i will do it again in bigger writing if it helps.

 

Your Pal Peter

[Fullyskinted]

Guys - Ive got issues with CCA requests and no reponse. Now on eof them is threatening a DCA.

 

Can you take a look please

 

http://www.consumeractiongroup.co.uk/forum/general/73472-cca-requests-have-failed.html#post636011

[zubo]

btw

 

way ot-

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n149_1105.pdf

 

is dead.... the courts-service is dead - timing out on me

 

I need to type up my AQ - anyone got an N149 pdf blank they can let me have.

 

cheers FORG|ET IT - GOT IT NOW....

[Peterbard]

Hi Pam found your lind also says this??

Must be quoted?

7 The APR which must be denoted as ‘annual percentage rate of the total charge

for credit’, ‘APR’ or ‘annual percentage rate’. The only case in which the APR

need not be shown is in a fixed-sum agreement for credit to be spent on specified

goods or services where the total amount payable is the same as the total cash

price (that is, there are no credit charges). In that case there must be a statement

indicating this.

Office of Fair Trading 11

How can you calculate it without knowing your credit limt on a running account??

IDunno

[Mike220359]

Pam & Pete, I've just come back on here and there is alot of very confusing information, both very well argued I'm sure but to someone who is coming on this site for help, a total confusion.

 

Might I suggest that you both present your cases, and let us adjudicate. I have the CCA 1974, in front of me, together with the Consumer Credit (Agrreements) Regulations 1983, SI 1983/1553. The SI 1983/1551 and the OFT guidlines on what should be in credit agreements. It might also be worth enclosing the agreemnt that you have in question since I can't find it, and that too is leading to confusion.

 

Mike

[zubo]

Pam & Pete, I've just come back on here and there is alot of very confusing information, both very well argued I'm sure but to someone who is coming on this site for help, a total confusion.

 

Might I suggest that you both present your cases, and let us adjudicate. I have the CCA 1974, in front of me, together with the Consumer Credit (Agrreements) Regulations 1983, SI 1983/1553. The SI 1983/1551 and the OFT guidlines on what should be in credit agreements. It might also be worth enclosing the agreemnt that you have in question since I can't find it, and that too is leading to confusion.

 

Mike

 

must be teatime... the silence is deafening....

I suspect Mike that we have exhausted ourselves. Certainly I have.

[ncf355]

Hi,

 

it's this agreement..................

 

 

 

[tamadus]

Zubos letter does not surprise me in the least, I've asked for copies under section 77 & 78 for the following.

 

1.Bank of Scotland (Blair Oliver & Scott) couldn't supply the documentation.

 

2. Lloyds TSB, suppied the 'orginal agreement' - not signed by them. Prescribed terms missing, reported to TS and OFT

 

3. Citibank, yes Citibank Brian!, supplied the 'original agreement' - not signed by them. Prescribed terms missing

 

4. Monument supplied the 'original agreement' after six months! Not signed by them, merely stamped, not good enough, Regulation 6 of the 1983 Consumer Credit (Agreement) Regulations states that it has to be signed and dated. Prescribed terms missing. Reported to TS and OFT

 

5. Royal Bank of Scotland, can't supply the original agreement dealing with.

 

6. Barclaycard cannot find the original agreement.Dealing with.

 

As this thread has grown we have seen th banks continual dismissal of consumer rights, the non execution of agreements on their part is another arrogant action, since up to recently nobody has ever stood up to them to establish their rights. Well the pigeons are coming home to roost now and alot of money is going to have be repaid because of their arrogance.

 

Incidentilly the section 85 argument which I have always been a stentorial advocate of is negated completly by the the non-execution of the original arguement. However, if the arrogant twits have stopped arguing the toss I wouldn't have asked for the original agreement and wouldn't have known about the no-execution.

 

ALWAYS ASK FOR THE ORIGINAL AGREEMENT

 

BE STRONG THEY ARE MOST DEFINATLY WRONG!

 

Mike

 

Mike ,

 

Did you write letters to OFT and TS ? if so any chance of a copy of them I now need to make formal reports for both LTSB and Barclaycard to back up my arguments.

 

Barclaycard have supplied an application form with NO mention whatsoever of the CCA and literally NONE of the prescribed terms or statutory terms. their signature is illegible owing to a rubber stamp over it lol

 

LTSB have supplied an application form with prescribed terms relating to interest and credit limit missing, although it carries the credit agreement heading it stil has LTSB application form as a sub heading. Again their signature is illegible owing to a rubber stamp.

 

Time I started getting tough with both of them. Oh no phone call today

[tamadus]

Peter

 

You are forgetting what s127(3) actually says:

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

 

So, any document that contains all of the prescribed terms and the debtors signature will be considered by the court for enforcement - i.e. an improperly executed agreement may be ruled enforceable depending on the actual circumstances, but one that does not contain all of the prescribed terms and the debtors signature will not.

 

So my personal opinion is that a document that looks like an application form 'could' be ruled enforceable if it contains all of the prescribed terms and signature.

 

 

Regards, Pam

 

That's exactly as I read it, it's alos the reason they all tried to speed up the process bay trying to make the application form and agreement the same piece of paper. Problem comes when they rely on prescribed terms that are in the T&C as nobody has signed those. They are relying on the statement that we have read and understood them to incorporate them into the agreement but we never actually signed them.

[joneshousehold]

But what about the effects of S59? I know we are going back over old ground but how does the application form get over the impact of S59?

[Guest The Terminator]

Update: MBUSA or Bank of Americia defaulted under S85 in Dec 2006 haven't heard a dicky bird not pursing at the moment because I've got something else up my sleeve.

 

Humptey: CCA request submitted in Dec 2006.No response which means a certain DCA will have to answer to a judge.

 

Barclaycard: Can confirm that as of today they are in default or their DCA is.I may well have a dig at both of them.

 

Now to get on to serious business.Peter & Pam you need to chill a bit.I've followed your postings all day and you can both quote the SI's until your blue in the face but the fact is that SI's cannot overide stature as much as the MIB'S would like us to beleive it.Stature cannot be overidden by SI's so I suggest you take stature as the law of the land.Anyway I'm not having a dig at you two but the last thing I wan't to see is the MIB reading these threads and note that we are arguing among'st ourselves.Let's not get complacent we are in a position at the moment where we can prove that we have been ripped off for the last 30+ years.

[InKogneeToh]

My only other observation Pam is that the document you are quoting from, whilst created and undoubtedly checked and verified is truly interpretative.

 

The opening pages contain the disclaimer:

 

This booklet gives general guidance. If you are unsure about how your business is affected, you should refer to the Act and the Regulations themselves and, if necessary, seek professional advice.

 

I would prefer to cross-reference the Act and interpret how I believe that was written and be prepared to argue my point at court, because as we all know it is that interpretation which is going to count.

 

Z

 

Hi

 

That's a fair point but the courts also use the regulations to determine what the Act means - see Dimond v Lovell (CA) and Wilson v FCT (CA) for examples of lots of references to the regs. The OFT is explaining the regs. in laymans terms and I doubt if any county court judge has any real grasp on the legislation. They will probably look to interpretations such as this themselves.

 

Regards, Pam

[InKogneeToh]

Yes i know it was me that deciphered it many moons ago but i am talkingabout(4)

 

I'm talking about 4???

 

Translation please.

[InKogneeToh]

Pam

 

Someone else might have already argued this point, however:

(imo) an application is clearly pre-contractual in that you are responding to an offer to enter into an agreement. Your signature at this stage is simply a pre-contractual interest to enter the agreement based on the advertised conditions.

Indeed, it is at this stage that you would seek to alter or vary any of the conditions - including - if you value your privacy - consent to share your data. We know that there needs to be a number of steps to complete and prepare the agreement, one of these maybe consideration of any variation you require another is whether you are an acceptable risk and so on.

The contract is made by the finally determined agreement countersigned by the creditor and debtor.

So... despite what you quote, if you truly correctly interpret the application - THAT document cannot be deemed to be any form of agreement.

 

Furthermore even if I were to agree with you, whilst you quote s127(3) - there is also s127(4)(a) and (b) to consider whether any enforcement order would be given.

 

Z

 

Hi

 

Again, valid arguments and the only way to get a definitive answer is through the courts - but unfortunately a judgment at county court level cannot set precedent and different judges may have different interpretations, so each claim made by any of us will have to stand alone, unless taken to a higher court.

 

Regards, Pam

[InKogneeToh]

However, each individual agreement may have only one APR – see Q3.65. In the OFT’s view, the document which the debtor signs must contain the APR applicable to that particular agreement. If it does not, the agreement is not properly executed and can be enforced against the debtor only with a court order – see Q1.19.

 

It Means that an agreement cannot be made if the APR being applied is down to the risk(Credit Score) only an applicatio.

Now the agreemnt se are talking aboput has anarrangement of APRs which will depnd on the credit limit issue which,youve guessed it will depend on the credit score.eg Unenforceable w.c.o agreement on yet another score.

 

 

 

Hi Peter

 

I don't know which agreement you've been discussing but I have been commenting on ncf355's Citi agreement. This document does not have a range of APR's - it has a set APR for purchases and a further set APR for cash or cheque advances. This, I assume, has been calculated by using the permitted estimate of a credit limit of £1500 as per the regs.

 

Regards, Pam

[InKogneeToh]

That's exactly as I read it, it's alos the reason they all tried to speed up the process bay trying to make the application form and agreement the same piece of paper. Problem comes when they rely on prescribed terms that are in the T&C as nobody has signed those. They are relying on the statement that we have read and understood them to incorporate them into the agreement but we never actually signed them.

 

Thank you Tam!

 

We can argue the application form versus proper agreement issue all we like but the fact remains that if (and only if) the debtor has signed some sort of document that contains ALL of the prescribed terms then it is 'improperly executed' and not void/unlawful/unenforceable/rubbish/toilet paper/paper aeroplane material etc. etc., and it 'could' be enforced by a court.

 

Also, credit card agreements are cancellable, so provided that the debtor received the 2nd copy and cancellation info. then the court may also decide that the pre-contractual application form argument has no relevance since the debtor was free to cancel if he didn't accept any of the terms.

 

Regards, Pam

[zubo]

I'm talking about 4???

 

Translation please.

 

i believe s127(4)

[joesoap]

I couldn't find a template for requesting the original CCA so following advice, I bashed this up; is it ok to send?

 

Dear Sir/Madam

 

Account No:

Ref:

Re: American Express Services Europe Ltd

 

Thank you very much for your enclosure regarding the above. However, with the greatest respect, this cannot be construed as the original Credit Agreement under the Consumer Credit Act 1974. As it stands, this document is improperly executed; it does not contain the statutory statements nor is it signed by the creditor. The document will be filed and retained in the event of any litigation and if you would be so kind, please forward the fully executed agreement with ALL the prescribed items as specified by the Consumer Credit Act 1974.

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

I am sure that you will be aware that until such time as I do receive the fully executed agreement I am well within my rights to cease further payments.

 

I look forward to hearing from you within the stipulated time limits.

 

[tamadus]

Thank you Tam!

 

We can argue the application form versus proper agreement issue all we like but the fact remains that if (and only if) the debtor has signed some sort of document that contains ALL of the prescribed terms then it is 'improperly executed' and not void/unlawful/unenforceable/rubbish/toilet paper/paper aeroplane material etc. etc., and it 'could' be enforced by a court.

 

Also, credit card agreements are cancellable, so provided that the debtor received the 2nd copy and cancellation info. then the court may also decide that the pre-contractual application form argument has no relevance since the debtor was free to cancel if he didn't accept any of the terms.

 

Regards, Pam

 

Only problem here Pam ia that I actually cannot remember ever getting a 2nd copy. I seem to remember sending the application form in and getting a card back on the standard card carrier.

[Seahorse]

That would appear to be a common theme, Tam. Especially true of all of these Pre Approved application forms. Sign, send, receive. No second agreement, just a standard card carrier. Responsible lending? Hmmmm.