Cap1 & CCA return

[Peterbard]

The case law to back up our argument: note the emphasis.

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement.

 

This backs up our argument with the many credit providers who have obtained our signature on application forms and agreement documents that do not themselves contain all the prescribed terms. Many seem to believe that it is acceptable to have the prescribed terms on another document, often shown with all the other terms and conditions of the contract.

 

NOT SO!

 

Hi Paul

 

In a recent case when shown a phohoto copy of a front of an agreement with just a signature and a statement from the creditor that the terms would have been on the back

The judge said some thing like " these are major institutions with a great deal of expertise in the legislation required in their trade and it is not i believe probable that they would make such an error as to have not included the terms on the same document as the signature."

 

My question is this;

if they are so wise in the ways of the cca 1974 why didn't they ensure that the prescribed terms were on the same scanable page as the signature box, surely such an all knowing organisation would have realised that this left them wide open to asection 127(3) of the act.

Then you must ask if they can make such an obvious error as that is it not possible they made another and did not include the terms in the document at all.Personally i think it is.

 

Peter

[paulwlton]

Hi Paul

 

In a recent case when shown a phohoto copy of a front of an agreement with just a signature and a statement from the creditor that the terms would have been on the back

The judge said some thing like " these are major institutions with a great deal of expertise in the legislation required in their trade and it is not i believe probable that they would make such an error as to have not included the terms on the same document as the signature."

 

My question is this;

if they are so wise in the ways of the cca 1974 why didn't they ensure that the prescribed terms were on the same scanable page as the signature box, surely such an all knowing organisation would have realised that this left them wide open to asection 127(3) of the act.

Then you must ask if they can make such an obvious error as that is it not possible they made another and did not include the terms in the document at all.Personally i think it is.

 

Peter

 

I know of the above case and the one where the court enforced the agreement simply because the Claimant produced the signed credit card which had been sent back earlier. IMO both cases were argued in front of inept prejudicial judges. The Act, regs and recent case law suggests the judge got it wrong.

[Peterbard]

Hi

I started thinking about this signature thing and it re-occured to me that there is a window for the use of section 127(3) where the agrement would have to have the signature undespersrsed with the rest of the terms and conditions, between August 2005 and 6 April 2007.

 

Between these dates any agrement would have to have the signature box contained undesperced along with the rest of the schedule 1 information.

 

THe first date being the commencement of the agrement regulations 2004/1482,and the second the date of the removal of section 127(3) from the act.

 

I wonder how many agrements this would apply to?

 

Peter

[millymollymoo]

Hi

 

The terms of the agreement are things like the amouont of the loan the amount of the reapyment and the interst rate these are the most important and must be correct so much so that the act prescribes that they must be correct ,if they are not it cannot be enforced, hence prescribed terms.

 

All the other terms like the total amount payable the default information the APR etc are required to be within the agreement also but the penalty for them not being there or being incorrect is less, in that a court can enforce the agreement.

All thes terms are set out in the schedules of the agreement regulations and are periodically ammended by act of parliament.

 

The form of an agrement is the way that it is presented orthe format. Requirements for this are also contained within the agreement regulations but in the various sections.

Form governs things like the need for the legibility of the text, the fact that certain information should be in a bolder type than others, which information should be grouped together, which can be interspersed throughout the document, size and placement of signature boxes etc.

If the creditor does not follow the regulations regarding the form they also breach the act but it is usually only considered a minor breach.

 

However it is important that all these terms are contained within the agreement not in a sepperate piece of paper with terms and conditions on it they must be within the signature document if they were not then it would be a major breach and should result in the agrement being unenforceable particularily if they are prescribed terms.

 

In the case of an agreement for a credit agrement pre August 2005 the signature can be anywhere in the document which means that the terms prescribed or otherwise can be on the reverse,or in an attached sheet even, if it forms part of the same document.

It cannot be in another document and the required and prescribed terms must all be grouped together in one place (without being dispersed).This is the prescribed form.

 

Peter

 

Thank you Peter

 

Milly XX

[citizenB]

Gazza112 found this whilst wandering the web,

 

The Payment Services Regulations 2009 and the Consumer Credit Act 1974

 

Comes into force in November 2009

[Viscount Stair]

Good spot - worth getting our collective heads round, I think.

[simon the poet]

Hello

 

I have an agreement that needs looking at can I post it on here

Simon

[cds]

I would post it on the relevent forum egg, mbna cap 1 etc you will get better exposure and the experience of people dealing more specifically with your lender

 

cds

[simon the poet]

I would post it on the relevent forum egg, mbna cap 1 etc you will get better exposure and the experience of people dealing more specifically with your lender

 

cds

 

Cheers

 

I din't know the requirments were different for different lenders

Its an egg i will have a look over there.

 

Simon

[MAGDA]

Cheers

 

I din't know the requirments were different for different lenders

Its an egg i will have a look over there.

 

Simon

 

Have you seen PT's thread Simon - really helpful for anyone dealing with Egg

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188093-egg-credit-agreements-what.html

[pinny24x7]

Hi

 

In regards to signatures and the four corner rule, could you kindly have a look at my thread and decide if I have a case of an unenforceable agreement? What would I need to say to the creditor when writing to challenge this?

 

Many thanks in advance

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/194260-abbey-loan-unenforceable-agreement.html

[millymollymoo]

Hi I received a letter back from Professor macleod today. He is in retirement now and is happy to help me with any queries as to any other questions I have regarding this issue, which is extremely kind of him as it is without any cost to myself.

 

 

FIRSTLY, please read the letter properly as you will see it does state that my query is in RELATION to the 2002 edition, even though it is headed 2006 ed. He also refers to Goode para in CONSUMER LAW etc, I DO NOT have access to this so you guys who do could look at that an d explain what he means????

He also provided an out of date (due to 2006 amendemnt of CCA 19740 CCA agreement to show me an example of what he means - prescribed terms on the front and embodying terms and conditions on the back.

 

Now I actually (and please do not shoot me down just yet) agree with the logic that the PRESCRIBED TERMS as shown SHOULD be on the FRONT of the document as these are the MAIN terms .

 

I understand on this agreement that the signature box is on the front and yes I agree with all you peeps on here now that the signature box in pre2005 agreements could anywhere as the agreement regs do NOT specify where this box should appear exactly on the agreemnt - HOWEVER I TRULY believe that the PRESCRIBED TERMS being that important that I think what the Professor is trying to get at is that they SHOULD NOT be on the reverse of a load of non important gobbedly gook on the front as SOME CREDITORS are trying to pull off as in my case with BANK OF SCOTLAND.

 

 

In this scenario why would the PESCRIBED TERMS of the agreement be on the reverse as they are the important bits compared to lets say CREDIT CARE and DATA PROTECTION info being on the front - to go further why would the PRESCRIBED TERMS be in another document?

 

 

So here is the letter below and you guys can debate on it.

[millymollymoo]

AGREEMENT BELOW SUPPLIED:

 

[millymollymoo]

REVERSE:

 

 

[foolishgirl]

Thanks Milly for posting this. I hope no-one shoots the messenger!

 

How nice of the Prof. to respond.

 

I don't have a copy of Goode either so have to wait for the legal guys to elaborate..

[MAGDA]

Hi Milly, doesn't it state though that the 2004 regs determine that the prescribed terms must be together as a whole, which is basically what Peter was saying, as these came into effect, I believe in 2005. Magda

[lexis200]

i agree , minimal breach but a breach all the same,i seem to remember the Xerox and Hepple case resulted in the amount being reduced from 5k to 500 but i cant remember for the life of me what the facts of the case was, i will have to jump on lexis and have a look

 

trouble is with much of this work, the cases are largley unreported as they are often settled on the steps of the court without publicity

 

:eek:

 

I don't remember agreeing to that!!

 

[lexis200]

Very very interesting read on the last couple of pages chaps - thanks for all the work and effort you put into it!

[Having_A_Knightmare]

Hi

 

Can somebody do me a big favour.

 

Can you work out the interest out on 9.5% APR on £15000 over 84 months.

 

Cheers

HAK

[foolishgirl]

HAK - my calculator makes it £5,342.55 but it's not always 100% accurate so use with caution

[Having_A_Knightmare]

FG

Thankyou so much for that.

 

Looks like RBS are going to be paying me some serious cash back.

 

Can you tell me how to calculate it as I am going in bank tomoorw

[patrickq1]

tho these arguements benifit like minded people ,perhaps an POINT OF LAW DISCUSION THREAD BE PROVIDED and hopefully the much learned good people can help solve the problems for those in need but otherwise informative threads my biggest problem is memory loss so i absorb only parts of problems ,it is becoming a curse ...

anyway just thought i would say my peace

patrickq1

[patrickq1]

hey sounds like good news hak good for you

patrickq1

[foolishgirl]

I use an online calculator ('cos I'm hopeless with excel & stuff) which is why it's accuracy is not always 100% I think. If you are going to challenge the bank suggest you get a second opinion first.

[Having_A_Knightmare]

I use an online calculator ('cos I'm hopeless with excel & stuff) which is why it's accuracy is not always 100% I think. If you are going to challenge the bank suggest you get a second opinion first.

 

Thanks FG....