Cap1 & CCA return

[Acerfan]

Many thanks for all the responses to my queries. I have another question to put to you regarding disclosure of personal information. Having received a copy of my application form in an illegible state, I cannot verify that I ever signed an agreement with them - so, all the calls I've been gettitng over the years from organisations 'in association with' the CC company offering services ie health insurance etc - have they been given my information illegally if no agreement exists? The CC company therefore having breached the Data Pretection Act?

[TideTurner]

How many forms have you filled out innocently which included a clause providing the permission for the information you provided to be shared with others? After lots of complaints, this later became a tick box where the client must have an understanding as to what he was providing within the paperwork. On the net and with software, you now have to tick the box to agree to their T&C's.

 

The problem you have is proving the source of your information.

 

In 1995 / 6 the entire electoral register was provided on CD for the princely sum of £30.00. The electoral forms you receive now have an 'opt out' box to tick, so your details may not be made available publicly.

 

You need to be able to show that the only source of certain information was them, and that it was provided unlawfully as you did not provide them with the relevant authority to communicate it to a third party.

 

Else, they can claim a third party got it from somewhere else.

 

I made SAR's to some 10 companies and can now prove provision.

 

A good request when asking for all documents of which you are the subject, ask for copies of ALL email's.

 

This often provides association between companies.

[meagain]

ergo combining the letter and S61 clearly shows that any application form that is not signed by both parties CANNOT be an agreement.

 

But it doesn't say that an application form signed by both parties, with the T+Cs attached, cannot be the agreement. Between them, they form a document embodying all the terms - it would take an extremely literal reading of S61, not to mention excluding the possibility that because they are on separate sheets of paper that they cannot form one document. The application form will invariably contain a reference to the T+C, so even if it says "The T+C are in the leaflet titled 'X'", in the presence of said leaflet, the document does embody all the terms of the agreement. Were this not the case, then every time you sign up for a credit card, they would need to send you a huge wad of papers containing the full text of the CCA (and its amendments), DPA, UCTA, UTCCR, and a whole bunch of other legislation. This would be entirely impractical, and therefore cannot possibly be the true intention of S61.

 

Again from the above, an application form and a SEPERATE copy of the T&C's cannot be a valid agreement either.

 

As I said above, this statement requires quite a leap from the actual letter and S61, not to mention an overly specific definition of "document". There's nothing in there which specifically excludes the two being on separate pieces of paper.

 

And finally "...Prior to the CCA 2006, the section also provided that the Court could not make an enforcement order under section 65(1) if section 61(1) was not fully complied with"

 

All that means is that it's not enough to produce something to be the agreement, they have to provide evidence that you entered into it - which I would hope is par for the course with contracts.

 

So add up all the above and whichever way you cut it an application form + a seperate copy of the T&C's cannot be an agreement

 

When I add it all up, I don't get that. Maybe I'm short by some of the long assumptions you're making.

[meagain]

How many forms have you filled out innocently which included a clause providing the permission for the information you provided to be shared with others? After lots of complaints, this later became a tick box where the client must have an understanding as to what he was providing within the paperwork. On the net and with software, you now have to tick the box to agree to their T&C's.

 

On the net, what is becoming increasingly common is that they provide a checkbox saying "I agree to the sharing of my details", checked by default - you have to manually uncheck it to opt out.

[TideTurner]

I know, in all fairness, you should 'opt in'. This is then classed as a deliberate decision for your authority for them to provide the information.

 

Also Natwest's Advantage Gold Account requires you to 'opt in' to receive interest.

 

Now tell me they don't know what they're doing.

[Number6]

meagain

 

If an application form does not contain signatures of both parties, signed in the prescribed manner then it cannot be the agreement. S61(1)(a) states:

 

"(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner

 

The letter states, in para. 3 page 2:

 

.... [section 127]... provided that the court could not make an enforcement order under s65(1) if s61(1) was not fully complied with....

 

So none, or only one signature on an app form = totally uneforceable - Ian McCartney says so.

 

s61(1)(b) states "... the document embodies all the terms of the agreement, other than implied terms"

 

To embody means to incorporate, or to represent; it implies that it is a part of the whole, not a reference to some extraneous document. A commercial contract, no matter how complex would not leave out terms and conditions - referring to external documents is not good enough unless those terms are implicit, such as referring to law or statute; for example, no contract would state "you must not purposely kill anyone" as the law assumes that you know this to be wrong, it's an implied term. In the same way there is no need to incorporate the CCA 1974 into any contract because it is a statute and in the eyes of the law it's common knowledge, not a proprietory condition.

 

No, a contract (agreement) has to be signed and dated by all parties and must contain (not refer to) ALL the relevant terms and conditions.

 

I can point you in the direction of Egg for an example of a good contract (in terms of good meaning complying with the CCA). My Egg agreement is several pages long, looks and feels like a proper contract and so far as I can see complies with S61 in every respect. I can post a copy if you want. Now if Egg are doing that it must be for a reason.

 

Pete

[Number6]

And whatever their other faults Egg were able to provide me with a copy of my agreement following my S78 request within a week.

 

Pete

[Guest The Terminator]

Im expecting them to take longer than a week because they've got a DCA working for them

[meagain]

meagain

 

If an application form does not contain signatures of both parties, signed in the prescribed manner then it cannot be the agreement. S61(1)(a) states:

 

But this is where your point falls down. If it does contain the signatures of both parties, and is signed in the prescribed manner in the correct places, it may still be part of the agreement (but not the whole agreement without the other important pieces).

 

To embody means to incorporate, or to represent; it implies that it is a part of the whole, not a reference to some extraneous document. A commercial contract, no matter how complex would not leave out terms and conditions - referring to external documents is not good enough unless those terms are implicit, such as referring to law or statute; for example, no contract would state "you must not purposely kill anyone" as the law assumes that you know this to be wrong, it's an implied term. In the same way there is no need to incorporate the CCA 1974 into any contract because it is a statute and in the eyes of the law it's common knowledge, not a proprietory condition.

 

... which still leaves the question of the definition of "document". There is nothing to suggest that a page with an application to sign, a set of terms, and a tariff of rates and fees, cannot together form the agreement.

[TideTurner]

If the contract refers to the T&C's and the terms were not explained to the client in full, then the client cannot possibly have understood the original agreement.

 

If these were two seperate documents, how can they ever prove that the client fully understood the agreement unless the client had also signed a decleration to say he fully understood them? This must then be countersigned by a representative of the lendor, confirming the terms were made clear to the client, given the majority of their clients would be laymen, and signed by both parties.

 

Also see post http://www.consumeractiongroup.co.uk/forum/post-438102.html with respect to concealement.

[meagain]

If these were two seperate documents, how can they ever prove that the client fully understood the agreement unless the client had also signed a decleration to say he fully understood them?

 

When you sign the application, this is usually part of the declaration as appears near the signature box.

[TideTurner]

I understand that, but when an agreement is made, in the absence of the entire terms (not referral to them) you cannot be expected to possibly know what you are signing up for.

 

Also, have you had sight of them? Could they provide others and claim you had seen them, and they had been explained to you prior to signature?

[Number6]

But this is where your point falls down. If it does contain the signatures of both parties, and is signed in the prescribed manner in the correct places, it may still be part of the agreement (but not the whole agreement without the other important pieces).

 

Maybe, but have you seen any copy apps that were properly signed? I haven't. None of the copies I received conformed to S61(1) and or (2)

 

The only properly executed agreement I've seen is Eggs - it's light years ahead of the copy application forms that all the other lenders are sending out, that's if they send anything at all.

 

Pete

[TideTurner]

Number6,

 

My problem is with a mortgage, and they have tried to 'pass off' a piece of paper (from microfiche) as an agreement, which is an application - and authority for them to check me out for the purposes of obtaining references to provide a mortgage, nothing more. This is not a contract, and doesn't resemble one.

 

Thanks guys, you've just solved a problem for me - I don't even have a contract or agreement!

 

Is this not similar to trying to 'pass off' a photocopy of a banknote as legal tender? Same intention.

[Sparkie1723]

A photo copy is acceptable in a court ....Provided the original is produced also ..........if the original is not there BINGO.......

 

 

Sparkie1723:D

[JonCris]

A photo copy is acceptable in a court ....Provided the original is produced also ..........if the original is not there BINGO.......

 

 

Sparkie1723:D

 

Sorry Sparkie but your post is a bit of a contridiction.

 

To clarify one of the bundles used in court must contain all of the original docs. The remainder will of course be photocopies

[TideTurner]

Sparkie, as long as it is legible and agreed by both parties. I take your point, you can insist on the original. Else Ken Dodd could have signed your life away. Ken's honourable by the way.

[meagain]

Indeed - Ken will only sign your life away in aid of a good cause, or failing that, a good laugh.

[Sparkie1723]

in a court case there are three bundles

1 for the judge

1 for the defence

1 for the claimant

each must have a copy who ever it is the defendant or claimant must be able to produce the original to show that all three copies are copies of the original, as copies can be and have been "doctored".

 

If the original cannot be produced as I said BINGO ...no case to answer.

 

meagain ...the only real good cause Ken has is Ken thats why he laughs so much and wants to be chancellor of the exchequer so he can be near his money

[JonCris]

Correct Sparkie. The court can & probably will request sight of the alleged original if it's argued that it ain't the original.

[breadline]

my thoughts for my own bundles were folders of photocopies and my own would contain all the originals, this must be the only way it should be done.

The court could ask for anything they wish at anytime, but would a loan company risk the chance of not being asked?

[JonCris]

Agreed Your bundle should be the originals.

 

No in fact if you go to trial your going to ask for disclosure of the 'true' agreement ain't you.

 

enough bed!

[joneshousehold]

In simplistic terms if the only copy kept is on microfiche, is there no way of showing that was the true copy? I know it could just as easily be doctored when being stored on microfiche but in this age I had expected microfiche documents to be accepted as the original

[joneshousehold]

S64 (2)(b)© Data Protection Act provides

 

Transmission of notices etc. by electronic or other means.

(2) The requirement that any notice, request, particulars or application to which this section applies should be in writing is satisfied where the text of the notice, request, particulars or application-

(a) is transmitted by electronic means,

(b) is received in legible form, and

© is capable of being used for subsequent reference.

 

Right I have worked it out now. The above is the Data Protection Act not CCA. The requirement in the CCA is in S61

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

(b) the document embodies all the terms of the agreement, other than

implied terms, and

© the document is, when presented or sent to the debtor or hirer for

signature, in such a state that all its terms are readily legible.

[elizabeth1]

Thank you Smoothy for pointing me to this thread!!!

 

I shall go start at page 1 and read through!!