Cap1 & CCA return

[Peterbard]

Hi i just phoned Consumer Direct about this and they said it is an agreement because it says on it credit agreement requlated by the consumer credit act 1974, and that the leaflet they sent me is also part of the agreement with the terms and conditions on it. They said that it is they application and agreement on the one form which is legal looks like im screwed then ill just have to go down they other road and claim back the charges on it.

 

HI

 

I think this is what i have being trying to say, this is an agreement because that is what it says it is what it is not is a correctly formatted or agreement.

All the points raised by lady b are correct and in my opinion it would be unenforceable

 

They can call what they want an agreement but whether it is enforceable is another matter.

 

Regards

 

Peter

[caigey]

Err- that sounds VERY wrong Caigey - if this is the case then everything that anyone (including TS, lawyers, judges, and MP's in statements) have ever said about CCA's is in fact incorrect and we've all been wasting our time on here!

I would SERIOUSLY check that advice out.

 

I wasn't expecting that answer from them not after reading these forms but what else can i do who else can i goto about it they are the ones dealing with complaints from TS and OFT. Do i just write back to hfc stating again that it is not an agreement and let them take me to court and see what they say? i really don't know what else to do now

[elizabeth1]

Hi i just phoned Consumer Direct about this and they said it is an agreement because it says on it credit agreement requlated by the consumer credit act 1974, and that the leaflet they sent me is also part of the agreement with the terms and conditions on it. They said that it is they application and agreement on the one form which is legal looks like im screwed then ill just have to go down they other road and claim back the charges on it.

 

 

Caigey - do Consumer Direct have a copy of this faxed or emailed/scanned to be saying this ?

 

This document is clearly headed "Application" - this is confusing?

[pford]

also it states

 

Application subject to status.

[caigey]

no i just explained it to them over the phone. I have sent an email to them now explaining it am waiting on them to reply so i can send them the scans.

[angry cat]

caigey the doc that you have shown above is an application, it is pre-contractual and therefore could not be an agreement!

 

You have to be quite forceful (but of course polite) with both consumer direct and TS.

 

Hey Guy's there is a letter a few pages back that I have been trying to find, it is from the OFT stating that an Application cannot be an Agreement!

 

If someone could find the link that I can't, it will be very helpful to caigey.

 

Love AC

[pford]

caigey the doc that you have shown above is an application, it is pre-contractual and therefore could not be an agreement!

 

You have to be quite forceful (but of course polite) with both consumer direct and TS.

 

Hey Guy's there is a letter a few pages back that I have been trying to find, it is from the OFT stating that an Application cannot be an Agreement!

 

If someone could find the link that I can't, it will be very helpful to caigey.

 

Love AC

 

you mean this one A C forgot where the link is

found it now was posted by Perseus

http://www.consumeractiongroup.co.uk/forum/general-debt/82492-cca-agreements-mark-ii-17.html#post774981

 

Dear Mr Paine

 

Consumer Credit Act 1974 ('The Act')

Our Ref : Epic/Enq/E/1760

 

Thank you for your email received on 31 March about your enquiry into the Consumer Credit Act Sect 77 & 78.I apologise for the delayed response.

 

The general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

If you would like to make a formal complaint. Please fill in the attached complaint form.

 

Thank you again for writing to us.

 

Yours sincerely

 

 

Olu Ademolu

Enquires and Preliminary Investigations Centre

Markets and Projects

[Jeff2000]

Hi pford,

 

 

Thanks for that, it will help me out a bit!

 

 

Cheers, Jeff.

[Peterbard]

caigey the doc that you have shown above is an application, it is pre-contractual and therefore could not be an agreement!

 

You have to be quite forceful (but of course polite) with both consumer direct and TS.

 

Hey Guy's there is a letter a few pages back that I have been trying to find, it is from the OFT stating that an Application cannot be an Agreement!

 

If someone could find the link that I can't, it will be very helpful to caigey.

 

Love AC

 

Hi AC

Yes i posted the leter you are refering to it was in aresponse to a letter is sent to the DTI regarding the removal of section 127(3-5) and did indeed say that a application would not be acceptable as an agreement.

This is of course true and niether would a improperly executed agreement.

I thnk the person who questioned the oft should have asked is this an enforceable agreement. i think they would have got a very different answer. As for thes being pre contractual I am not exactlly sure what you mean as even correctly formated agreements are pe contractulal untill they are executed.

Oops sorry that wasn't the one i posted but nice to have confirmation.

 

Regards

Peter

[Peterbard]

Hi here is a copy of the letter i recieved.

RT Hon Ian McCartney MP

Minister for Trade Investment and Foreign Affairs

 

James Purnell MP

 

The Consttuency Office

Hyde Town Hall

Hyde

SK14 1AL

 

Dear James

 

“Thank you for your letter of 7th December on behalf of your constituent Mr Peter Bardsley of---------------------”

 

There follows some stuff about the section 77 requests not having to include a signature which is part of an ongoing dialogue we are having.

And continues

 

“Mr Bardsley describes a situation in which he was sent a copy of a company’s standard Terms and conditions when requesting a copy of a signed agreement form.

Just sending the terms and conditions is a breach of the ACT and the Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a true copy of the agreement.

 

If Mr Bardsley feels the rules are being flouted he should report the companies concerned to Trading Standards and the Office of fair trading. It is also a breach of the Act and the Regulations to send the application form rather that a true copy of the agreement.”

 

On the point that Mr Bardsley made on unscrupulous companies adjusting agreements……………………………………… ………………………………………………………………… ……..

 

 

 

Ian McCartney

Peter

vbrep_register("769622")

[caigey]

hi consumer direct just called me i sent them the complaint in an email after i had spoke to the guy on the phone. They are going to pass it onto the local trading standards office and they will deal with it from there. I still belive you guys are right and its an application form.

 

thanks

[ladybird17]

many staff at CD are not trained in this area - they mostly know how you can exchange a pair of socks that are the wrong size.

[angry cat]

Very good caigey!

 

I am so pleased for you...Consumer Direct jolly well should have passed your concern onto TS in the first instance.

 

Yes peterbard, I remember!

 

Yes i posted the leter you are refering to it was in aresponse to a letter is sent to the DTI regarding the removal of section 127(3-5) and did indeed say "that a application would not be acceptable as an agreement.

This is of course true and niether would a improperly executed agreement".

 

 

 

If any other BAG/CAG member feels unsatisfied regarding the results of their S77 - 78 CCA 1974 request. Report it to Consumer Direct but remember to be steadfast with your complaint, polite but very firm should be your stance, do NOT be fobbed off and insist that your complaint/concern about CCA rules being flouted must be passed on to your local TS Fair Trading Officer for investigation.

 

Hey Guys,

we really do need some of these important letters to be put into a sticky.

Personally, I have them all in a lever arch file, but it would assist others if they are easily accessable by all.

 

Love AC

[un1boy]

I have had a positive convo with the guy rfom TS today.

 

He said that the lender told him they would send the T&C's and he genuinely thought they would- but they haven't. I told him that it's irrelevant them sending the T&C's now because they have already commited the offence.

 

He also admitted (for the first time) that the agreement is unenforcable.

 

He told me that he has to wait for his boss to get back next week, but that he is anxious to get this sorted now as it has been going on for ages.

 

I told him, "welcome to my world - they have tried to drag their feet all the way."

 

I also explained that if I enterd court papers they would remove it all straight away and hinted that if they mentioned they would prosecute, it might kick them up the ass as at the mo they are getting away with murder.

 

We'll see though, I'll keep you updated.

[angry cat]

Don't fprget they are meant to have sent you a copy of the T&C's at the time AND a statement of account!!

 

Thank you un1boy & perseus and all-

 

I am still brooding about what egg sent me in response to my s78 CCA 1974 request!!

 

Yes, I was sent 3 docs.

1. the front of the alleged agreement

2. the back of the alleged agreement

3. the Direct Debit manadate...but not the applicable T&C's issue date 2001.

 

Now the interesting thing about the egg agreement is that it is clearly stated-

"A copy of the agreement is enclosed for you to keep"

well egg did not provide that!? why?

Surely, the relevant issue date T&C's would have been incorporated into the said agreement, thus would form part of the agreement. I ask myself why these were not sent to me...there is nothing on the 3 docs that I was sent that show Default charges, because egg di not send the relevant T&C's or any T&C's.

also I have been sent nothing re the "Your Right to Cancel", which in the case of an internet application (distance selling) would have had to be sent to me after signing the alleged agreement. (not sure about that as the alleged agreement is dated 2001.

 

Anyhow, what do you think guys.

 

Love AC

[angry cat]

Un1boy thank God at last, maybe TS might and it's a big might, may be getting the message!!

 

I told him, "welcome to my world - they have tried to drag their feet all the way."

Good for You! keep us all posted and...On a lighter note, Elvis sang Welcome to my World, but his version in the 1968 comeback was DIVINE!

 

Love AC

 

Love

[Peterbard]

Very good caigey!

 

I am so pleased for you...Consumer Direct jolly well should have passed your concern onto TS in the first instance.

 

Yes peterbard, I remember!

 

Yes i posted the leter you are refering to it was in aresponse to a letter is sent to the DTI regarding the removal of section 127(3-5) and did indeed say "that a application would not be acceptable as an agreement.

This is of course true and niether would a improperly executed agreement".

 

 

If any other BAG/CAG member feels unsatisfied regarding the results of their S77 - 78 CCA 1974 request. Report it to Consumer Direct but remember to be steadfast with your complaint, polite but very firm should be your stance, do NOT be fobbed off and insist that your complaint/concern about CCA rules being flouted must be passed on to your local TS Fair Trading Officer for investigation.

 

Hey Guys,

we really do need some of these important letters to be put into a sticky.

Personally, I have them all in a lever arch file, but it would assist others if they are easily accessable by all.

 

Love AC

 

 

Hi AC

 

The point is the aplication would not be acceptable as an agreement even if it had the signatures and prescribed terms, because presumably the punter would have thought they were signing an application form due to the fact that it said application form on the top.

Don't forget an agreement can be used as an application thats what you do when you send an agreement off with your signature on it, the creditor will look at it and decide whether to execute it by giving his signature Section 61.

Now if someone can point me to where it says that an agreement and a application can not be on the same document i would be very grateful because i have looked and i can't find any such regulation.

So if some document says i am an agreement ,then you must treat it as such it is no use just saying it is just an application form, it isn't what it is is an improperly executed agreement.

So if you ring up the OFT and say is this document i have with credit agreement on the top a credit agreement they are going to say yes. If you ask is this a corretly executed agreement they will look at it and say no.

The fact that it is presnted as an application form takes it out of the equasion and whether it has all the terms and conditions and sigs makes no difference so it is pointless to waste time analysing it.

 

If however it is presented as an agreement then you must judje it as an agreement and decide whether it is enforceable or not.

 

Regards

Peter

[angry cat]

Whoa Peter!

 

I didn't want to get embroiled in an argument, I was simply offering caigey some advice as a consumer and a member of the BAG/CAG.

 

peterbard

"The point is the aplication would not be acceptable as an agreement even if it had the signatures and prescribed terms, because presumably the punter would have thought they were signing an application form due to the fact that it said application form on the top".

 

Exactly correct. however, I do not accept the following quote:-

 

peterbard

"Don't forget an agreement can be used as an application thats what you do when you send an agreement off with your signature on it, the creditor will look at it and decide whether to execute it by giving his signature Section 61"

 

No, how can an application form for a credit card be considered to be an agreement?

The Applicant is blind, he/she does not know if he/she will be accepted. The Applicant has no idea as to what the credit limit might be?

Furthermore, as you put it the 'punter' (applicant) hasn't got the foggiest idea about 'the consumer credit act' and if you metioned s61 they would probably roll their eyes up to heaven.

Oh yes, the creditor may well look at the application and if they think that they can earn bucks out of it, then it will be approved.

 

This is all bordering on misrepresentation and possibly signing an official the ("Act") doc. under duress???

 

I am not a 'Rules & Regs' person, my craft lies within the Art's. However, I am not a fool but I do have the ability to apply 'COMMON SENSE'.

 

I do not know as to whether there is a Government Reg Doc that states that an agreement and an application cannot be upon the same doc., because the statutes are so engeniously written & amended. I am not a specialist in government statue/contract law, but it cannot be correct, because to dupe a consumer in that manner would clearly be misrepresentaion and or fraud.

 

Peter, please do not think that I am being antagonistic...I am just one of those souls with an extremely enquiring mind, thus I have to analyse.

 

peterbard

"If however it is presented as an agreement then you must judje it as an agreement and decide whether it is enforceable or not".

 

All that I can add, is that one should use Common Sense when making such a judgement/decison and only after being advised correctly.

 

Love AC:)

[ripoffstopper]

I need to speak to a site helper or mod urgently regarding my post #6622 on this thread and my own thread which is: http://www.consumeractiongroup.co.uk/forum/natwest-bank/87870-natwest-breach-cca-1974-a.html

 

Yesterday I received a disturbing letter from NatWest that looks as if they have committed a fraud in order to cover up their error in not meeting my CCA 77/78 request.

 

Before I write to anyone officially I would like to discuss the matter and decide on the best course of action. I am now off to work and won't be available till 19.00 hours. However if I can pm someone then I would be obliged. Can someone make themselves available for a pm conversation later today please?

Cheers ROS

[angry cat]

Stay calm ripoffstopper!

 

Triton Credit Services are the RBS Group's in-house collections department.

They have very impressive/important looking blue Triton letter headed stationary and of course when you receive a Triton collections letter, you naturally think...Oh My God they have sold the debt on:(

 

If Natwest have stated in a letter to you that they do not have a true executued copy of the alleged agreement, they are in no position to be sending you harassing collection letters.

 

Report them to the OFT as they are clearly not fit to hold a consumer credit licence. Report them to your local TS, that would be Eastbourne.

Last but not least, do not be bullied.

 

Please be aware that I have no legal expertise, my posts simply relate to my own personal experiences.

 

AC

also near the beautiful ashdown forest

[Perseus]

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/5078-10-data-protection-act.html

Hi ROS

This s10 DPA letter will warn them not to process your details any further, or to disclose to a third party. (Too late I know, but makes them aware that you know your rights).

Send the s10 letter to the DCA and original creditor, making sure that you clearly state that you hold the account in dispute.

State that they are in breach of your legal request for information under the cca1974 s77-78, and whilst they are in default, and have admitted that they hold no true copy of the alleged executed agreement, there are not entitled to pursue the recovery of any monies owing under the alleged agreement.

Also advise that you will contest any legal challenge regarding the alleged agreement, or pursuance of any alleged monies owed.

I would look for ZUBO as a search - he has a great letter to request consolidation of interest payments, removal of defaults, CRA bad history removals etc.

 

All the best, and stand firm.

 

Perseus

[Peterbard]

Whoa Peter!

 

I didn't want to get embroiled in an argument, I was simply offering caigey some advice as a consumer and a member of the BAG/CAG.

 

peterbard

"The point is the aplication would not be acceptable as an agreement even if it had the signatures and prescribed terms, because presumably the punter would have thought they were signing an application form due to the fact that it said application form on the top".

 

Exactly correct. however, I do not accept the following quote:-

 

peterbard

"Don't forget an agreement can be used as an application thats what you do when you send an agreement off with your signature on it, the creditor will look at it and decide whether to execute it by giving his signature Section 61"

 

No, how can an application form for a credit card be considered to be an agreement?

The Applicant is blind, he/she does not know if he/she will be accepted. The Applicant has no idea as to what the credit limit might be?

Furthermore, as you put it the 'punter' (applicant) hasn't got the foggiest idea about 'the consumer credit act' and if you metioned s61 they would probably roll their eyes up to heaven.

Oh yes, the creditor may well look at the application and if they think that they can earn bucks out of it, then it will be approved.

 

This is all bordering on misrepresentation and possibly signing an official the ("Act") doc. under duress???

 

I am not a 'Rules & Regs' person, my craft lies within the Art's. However, I am not a fool but I do have the ability to apply 'COMMON SENSE'.

 

I do not know as to whether there is a Government Reg Doc that states that an agreement and an application cannot be upon the same doc., because the statutes are so engeniously written & amended. I am not a specialist in government statue/contract law, but it cannot be correct, because to dupe a consumer in that manner would clearly be misrepresentaion and or fraud.

 

Peter, please do not think that I am being antagonistic...I am just one of those souls with an extremely enquiring mind, thus I have to analyse.

 

peterbard

"If however it is presented as an agreement then you must judje it as an agreement and decide whether it is enforceable or not".

 

All that I can add, is that one should use Common Sense when making such a judgement/decison and only after being advised correctly.

 

Love AC:)

Hey AC

Don't appologis healthy debate is what this site should be all about.

I have the greatist respect for your views and insght no question.

Anyway back to the issue.

I did not say that an appliction can be used as an agreement on the contrarry i said tht it ablolutely cannot,what i said was that an agreement can be used as an application.

Say you have an ageement that has all the terms, and is correctly formated acording to the regs and you sign it and it remains unexecuted because the creditor has not. You the send it to the creditor and it becomes an executed contract on his signature,in that sense it is an application as the creditor may decide going off information on your true application not to issue the credit.

In fact even if it is an uncancellabe agreement if you get to the creditor before he signs it you can still back out.

This is how distance marketed agreements and the earlier uncancellable agreements worked.

The difference is that it will be an agreement not an application form that you send off.

The mention of a document that is also an application form mentioned in the cancellation OFT pamphlet is refering to this practice.

I am sorry if i am being unclear but once again i am not saying an application can be an agreement it most definately cannot what i am say ing that an agreemen an be used to apply for for credit.

 

 

Best regards

Petr

[Jaranius]

xx

[Peterbard]

Hi

Do i feel lucky

 

No DH at the risk of your magnum and to repeat myself i have never said that an application can double as an agreement i have said that an agreement can be used as a vehicle to apply for credit.

This happens all the time and is even set out in the cca"if a agreement is supplied and on signing does not become executed "etc well then it is sent to the creditor and in that state it is an aplication as the creditor can sign or not.

This is the case as i said for agreements made away from trade premises or made when the creditor and debtor are not in the same room.

[Peterbard]

I can't see any response in relation to the emboldened text above.

 

If there were no face-to-face negotiations, does this 2001 agreement come under the distance selling regulations?

 

I know the main distance selling regulations act did not come into force until 2004, but I don't have enough info. to be sure if AC's agreement needs cancellation rights.

 

Awaiting the words of the wise ones, backed up with evidence, of course!

 

Thanks

Jay-R

 

Hi

The distance selling regs do not cover consumer credit they are Consumer hire agreements and are subject to the Consumer Protection (Distance Selling) Regulations as they do not involve a ‘financial service’ as defined

.

The distance marketing regs whichis i peresume what youa are refering to didnt come into force until 2004 so would not apply to your agreement.

 

Peter