Cap1 & CCA return

[Stubie]

OK all. I have a letter from RBS admitting they have no enforcable agreement

 

Excellent, I'm sure I don't have to say this but don't lose that letter

 

but still thretening DCA's and CRA's. How do i get these stopped

 

By communicating your personal details without authority they have breached the Data Protection Act and you can claim damages for this.

 

If they contact you then they are in breach of the Administration of Justice Act - damages again. There is also the Protection from Harassment Act which could result in fines and imprisonment.

 

You can serve an injunction to prevent the CCC from sharing your data - N266, I believe

 

and can i claim back the charges? Its a CC. I have written explaining they are in default and cannot pursue payment but it looks like they will ignore me.

 

This is typical but they can't ignore the courts. Without an agreement they can do nothing (and they know this) but will posture to see if you will pay up.

Edited July 9, 2009 by Stubie

[johnerog]

Thanks Stubie,

clarification helps a lot. Its one thing thinking it, but a whole lot different when you are sure of it.

By the way. Can i claim back charges on the account and if so how.

[Stubie]

Thanks Stubie,

clarification helps a lot. Its one thing thinking it, but a whole lot different when you are sure of it.

By the way. Can i claim back charges on the account and if so how.

 

In theory, you could claim charges and possibly interest too, since they are both contractual. No contract, no enforcement.

 

However, I'm not sure that anyone has done this successfully.

 

You could issue an MCOL claim for these at relatively low cost. As I say, I'm not sure this has been done. Perhaps someone more experienced will give a more enlightened view.

 

I suppose that you could write to them offering consolidation of costs and charges, removal of credit markers etc with a view to saving costs and see how they react (don't expect it to be received very warmly). If you go to court then the additional claim for damages plus statutory interest would increase the claim, their defence costs notwithstanding.

 

The risk is that they will defend for all they are worth. If they pay up then there could be a sort of precedent - not a formal one as county court does not set legal precedent - but any success reported on a site like this would risk the flood gates being opened. The "unenforcible agreement" debacle risks costing the CCCs a fortune, add refund of interest and charges and you have potential bankrupcy. You might arrive in court to be faced with a full legal team etc etc.

 

Hope this helps

[whu1]

default

[Needabreak]

I think I read somewhere (in some guidelines I think) that a credit card company could not change the interest rate on a CCA for a minimum period of 3 years unless it was stated in that original agreement.

 

I am having trouble finding it again and I may need it for a case.

 

Can anyone help please.

 

Thanks

[alisindebt]

use this ech time. They will keep writing to you but send this once and then don't answer after that, you have nothing else to say:

 

Formal Complaint

Letter before Action

 

Dear Sir/Madam,

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully

[underdog13]

I have seen many of these and am trying to put arguements together that any document that purports to be an application and wherein the "agreement" purports to be binding on the customer whilst not being on the creditor (i.e. it includes such statements as "If your application is successful....." or "Your card will be issued once additional checks have been satisfactrily comlpeted...") is void under s59 of the CCA.

 

"Agreement to enter future agreement void.

59. — (1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations."

 

Does anyone else have a view on this.

 

My belief is that an agreement is an agreement. If one party to said agreement reserves the unilateral right to withdraw then there is no agreement only a prospective agreement subsequent to the satisfactory completion of such activity as is cited as to be completed within the application.

 

In this situation s59 (IMHO) apples and the application conversion is blocked.

 

Anyone?

 

This was pretty much my thinking, too. One cagger has won with this ;

 

Here's some thought provoking snippets from a successful defence on prospective agreements used by PaulWalton (He WON) :-

 

[begin quote]

2 On the 19th May 2005, the Defendant signed an Application Form for a credit card facility to be provided by Claimant. (Exhibit 1)

 

3 Provision of this credit facility was dependant upon a satisfactory credit record being obtained by the Claimant from one or more Credit Reference Agencies, and upon other lending decision criteria. The Application Form was therefore a pre-contractual agreement to enter into a prospective full-regulated credit agreement with the Claimant in the event that the Defendant’s application was successful.

 

4 The Application Form contained a clause, which included the following statement -

'Please issue me with an additional Barclaycard for use on the account(s) to which this application relates. I accept to be bound by the Barclaycard Conditions of use'. As such, the application purports to bind the Defendant to the terms and conditions of any prospective credit agreement with the Claimant.

 

5 Section 59 (1) of the Consumer Credit Act 1974 states that 'an agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.’ The Defendant therefore contends that this pre-contractual document, not being a regulated credit agreement in itself, and insofar as it purports to bind the Defendant to the terms of an actual prospective regulated credit agreement, is void and of no effect.

 

[end quote]

[Stubie]

This was pretty much my thinking, too. One cagger has won with this ;

 

Here's some thought provoking snippets from a successful defence on prospective agreements used by PaulWalton (He WON) :-

 

[begin quote]

2 On the 19th May 2005, the Defendant signed an Application Form for a credit card facility to be provided by Claimant. (Exhibit 1)

 

3 Provision of this credit facility was dependant upon a satisfactory credit record being obtained by the Claimant from one or more Credit Reference Agencies, and upon other lending decision criteria. The Application Form was therefore a pre-contractual agreement to enter into a prospective full-regulated credit agreement with the Claimant in the event that the Defendant’s application was successful.

 

4 The Application Form contained a clause, which included the following statement -

'Please issue me with an additional Barclaycard for use on the account(s) to which this application relates. I accept to be bound by the Barclaycard Conditions of use'. As such, the application purports to bind the Defendant to the terms and conditions of any prospective credit agreement with the Claimant.

 

5 Section 59 (1) of the Consumer Credit Act 1974 states that 'an agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.’ The Defendant therefore contends that this pre-contractual document, not being a regulated credit agreement in itself, and insofar as it purports to bind the Defendant to the terms of an actual prospective regulated credit agreement, is void and of no effect.

 

[end quote]

 

Thanks Underdog,

 

I've read this clause many times and wondered why it didn't seem to be getting the airplay I would have expected, bearing in mind the number of CCA requests that seem to be responded with a signed application form.

 

I thought there might be a different interpretation that I was missing.

 

I don't suppose you can recall who won with this and if they were plaintiff or defendant?

 

The quotes are very informative.

 

Thanks again

[B3rty]

I'm not sure but I read somewhere that use of the credit token will overrule this as this is deemed to be binding to the agreement so basically they could issue this and if you use it thats the definintion of "if any"

 

The term “if any” is present because, as the definition of “executed agreement” in CCA section 189(1) makes clear, a regulated agreement need not necessarily be in writing.

 

Berty

[Stubie]

I'm not sure but I read somewhere that use of the credit token will overrule this as this is deemed to be binding to the agreement so basically they could issue this and if you use it thats the definintion of "if any"

 

Sorry if I'm being dim but where are you refering to with regard to the "if any" statement.

 

The term “if any” is present because, as the definition of “executed agreement” in CCA section 189(1) makes clear, a regulated agreement need not necessarily be in writing.

 

Berty

 

I would agree but whilst an executed agreement must be a regulated agreement a regulated agreement is not, necessarily, an executed agreement.

 

An executed agreement must be in writing or the references to distinbguising from the background media would be meaningless.

[citizenB]

Berty and stubie.. this is BRW's comments on the "if any" issue..

 

 

The following paragraph has turned up in a lot of Creditor/DCA letters just recently...

Quote:

Legal Argument

 

A copy of the executed agreement

 

Under the prescribed condition, section 77 of the Act requires the debtor to ‘...give the debtor a copy of the executed agreement (if any)....‘. The ‘if any’ most naturally refers to the exception for agreements older than 1985.

 

This is BRW's comments

 

 

The "if any" does not refer to Agreements older than 1985, it was inserted to cover those few Agreements that may be based on a Verbal Agreement as opposed to a Written Agreement. Hence, "if any" is to cover spoken Agreements only. It's not the magic Get Out of Jail Free Card that many DCAs think it is!

 

I'm pretty sure that is the opinion of both Francis Bennion and Sir Roy Goode.

[underdog13]

Thanks Underdog,

 

I've read this clause many times and wondered why it didn't seem to be getting the airplay I would have expected, bearing in mind the number of CCA requests that seem to be responded with a signed application form.

 

I thought there might be a different interpretation that I was missing.

 

I don't suppose you can recall who won with this and if they were plaintiff or defendant?

 

The quotes are very informative.

 

Thanks again

 

I believe it was Paul Walton who won with this against Barclaycard; I think he was the defendant.

 

My thoughts were pretty much the same as yours - this approach is a bit overlooked, so wondered if there was something I was missing:confused:

[B3rty]

The point I am making is the use of the credit token overrides s.59 as you sign this..and if neccasary could be part of the if any argument..

 

So to use s.59 as a legal argument is weak where as s.127(3) with case law is strong...if they didn't have an executed agreement you would use s.127 (3) not s.59!

 

However I would love to be wrong on this...

[Stubie]

The point I am making is the use of the credit token overrides s.59 as you sign this..and if neccasary could be part of the if any argument..

 

I can't see that, I'm sorry. If the credit token becomes the agreement then it lacks PTs (or am I just being daft).

 

If you apply for a CCA under s77-79 and in response to this the creditor sends an application form where there are clauses indicating that the document does not constitute a closed agreement, then, under s172, this is your agreement. If the agreement/ application form does not cite the credit token as constituent to the agreement then it cannot be constituent to the document. In any case the agreements regulations state that sigs and PTs must be within the agreement document, as does s60.

 

The signing of the credit token does not alter the content of the application. The executed agreement must be a closed bargain. If, after the fact, the creditor proffers a pre-contractual document as the agreement but, within this document there are open considerations which permit the creditor to withdraw but does not offer the same lattitude to the borrower then this falls within s59 and the qualifying regulations since it seeks to bind the consumer to a future agreement, and is voided accordingly, and rightly so.

 

I'm curious as to how you see the signing of the credit token having bearing on the agreement since, in essence, it would form no direct part of the agreement.

 

Disagree with me, please. If I'm to rely on this arguement in court I would sooner argue the merits of the case here where the risks are less.

 

So to use s.59 as a legal argument is weak where as s.127(3) with case law is strong...if they didn't have an executed agreement you would use s.127 (3) not s.59!

 

However I would love to be wrong on this...

 

I agree that s127 is a stronger arguement and is well supported in case law. The situation I want to explore is where a document is clearly an application form (it says so at the top), has open clauses permitting the creditor to conduct further enquiry prior to a lending decision (clearly pre-contractual) but purports to bind the consumer (it states this) and is signed by the consumer whilst carrying the necessary PTs.

 

In this situation one could not argue s127 as the document is sufficiently compliant. The only arguement is that s59 would void this document prior to the execution of it as an agreement.

[grahamt]

Hi all, Just a quick question (sorry not to start a new thread but i don't seem to be able to do it!!! Duhh!) After a CCA request to Egg i have received a signed agreement. There are two points i would like to query so any advice would be great.

 

1) The agreement seems to be over 2 pages. The signature on a different page to the prescribed terms. DOes this render the agreement unenforceable?

 

2) The repayment schedule/timescale and monthly amount repayable are actually different to what i pay and the end date of my agreement. I guess this is because i took a payment holiday about 2 years ago but i wondered if the differing figures rendered the agreement unenforceable.

 

Any help would be greatly appreciated.

[car2403]

Hi all, Just a quick question (sorry not to start a new thread but i don't seem to be able to do it!!! Duhh!) After a CCA request to Egg i have received a signed agreement. There are two points i would like to query so any advice would be great.

 

There's a beginners guide in my signature that will help you.

 

1) The agreement seems to be over 2 pages. The signature on a different page to the prescribed terms. DOes this render the agreement unenforceable?

 

No

 

2) The repayment schedule/timescale and monthly amount repayable are actually different to what i pay and the end date of my agreement. I guess this is because i took a payment holiday about 2 years ago but i wondered if the differing figures rendered the agreement unenforceable.

 

Usually, no. Depends on what the debt is (credit card/loan, etc) and what the original T&C's said.

 

Probably best to start your own thread, then post a link in here so we can take a looky at it.

[pedross]

An interesting point B3rty

 

If you have been asked to cut your cards in half and return them but do not, where is the proof that the cards are actually signed. Especially if replacement chip & pin cards have been issued, I wonder how many of those are used unsigned?

 

This does not take away your point regarding using the credit token though.

[car2403]

They keep cut up and returned cards to prove they were signed?

 

Not according to my SAR replies

[paulwlton]

The APR in fixed sum credit has a tolerance of plus 1 and minus .1 of the correct APR. If the APR was to breach the tolerance would the agreement be unenforceable as per s 127(3) or would the court have discretion.?

[pedross]

There's your answer from car regarding the signed cards then B3rty.

 

Signing the cards is of no relevence

[car2403]

It is interesting. I have this fight coming with AMEX, soon, as well. They reckon I signed the cards and that ties me to their agreement. I reckon I've always used chip and pin and have never seen their agreement, never mind signed it, nor have I ever signed the card.

[pedross]

Now that changes things again car.

 

If they are claiming that you signed the cards, the only proof they would have is if you cut them in half and returned them. You do not think they keep them according to your previous post. But that argument might be a standard assumption by Amex, even if you don't return the cards.

 

However, I do not see how signing or using the cards can have any bearing on a case. I accept that it could be proof that you have had the benefit of goods bought with the cards, but I do not see how it can validate an otherwise unenforceable agreement which does not comply with regulations. In the same way that the 6 years statements and payments etc proves the debt, which is an argument that has been dismissed on here many times. We do not dispute or agree the debt, this is a matter of law and the agreement is not enforceable due to etc. The signature box must be in the agreement not in a bit of plastic which arrives in the post a couple of weeks or a couple of years afterwards.

 

The way I see it is that they sent you a plastic card to go out and buy goods or services with. They asked to apply for one, you did, so they sent it. If you also asked for a card for another family member they would send an additional card. If they then demanded payment in full they would demand it from you. If you pointed out that most of the debt was from the second cardholder they would claim that because they did not have an enforceable agreement with the second cardholder, only with you, you were responsible. If they also do not have an enforceable agreement with you we are back to the situation where it must therefore have been a gift.

 

They like to try and prove the debt when in fact the courts are there to uphold the law.

 

Pedross

Edited August 9, 2009 by pedross

[car2403]

Agreed.

 

The issue is when you get a numpty Judge who looks at the moral issues and uses his prejudice to promote those over the legal issues.

 

If only all Judges thought the same way as us

[vint1954]

Agreed.

 

The issue is when you get a numpty Judge who looks at the moral issues and uses his prejudice to promote those over the legal issues.

 

If only all Judges thought the same way as us

 

But surely this comes down to The Law and:

 

 

Also may I draw your attention to Francis Benion

Consumer Credit Act 1974 s 127(3)

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on

Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

”Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.”

 

They can and do squirm as much as they can.

Vint

[lexis200]

Would the bennion quote have any sway in court if they are leaning towards a moral judgement, as I always think it's a pretty good moral argument in itself?