Willowb v RBS MINT CCA

[Movingon]

Mahala's "Application Form" (for a Principles for Women Card) also incorporated a full "Credit Agreement" (properly regulated and executed as far as we can tell). So it seems it's done in many ways - I wonder if The Act actually says that it must be separate?

[The Lantana]

I can't think of any reason why an application form could not subsequently become an executed agreement, if it contained all the prescribed terms.

 

Good point Stone

 

Regards

 

Lantana

[Guest willowb]

Ok I am getting really confused now and it seems that 'the light at the end of the tunnel' is fading fast.

 

One minute I'm thinking 'ok that's not a properly executed agreement:) ' the next I'm led to believe that infact it is.....I'm being advised to write to them for the full disclosure and then I'm being advised not to as they may comply within the timescale and be able to enforce the debt...then I'm reading...

 

(hope you don't mind me quoting you Lantana:) )

 

If the creditor finds the agreement he does not need leave of the court to enforce the debt. He clears the default by presenting a copy of the agreement to your fellow CAGer and is then free to enforce the debt through court action if he so chooses.

 

These actions can happen simultaneously, i.e. he clears the default by ensuring he presents the agreement in his court bundle. The fact an offence has been commited is of no concern to the Judge, as Laiste found out yesterday.

 

Once in court three things concern the Judge...

 

1) Is there a valid agreement

2) Has it been breached

3) Is the claimant entitled to enforce

 

Whiile the request for a copy of the agreement is outstanding the debt is legitimately in dispute. However, if I were in a position to continue my DMP payments I would, unless I had good grounds to genuinely believe I didn't owe any money (e.g. charges outweighing debt). By stopping payments the creditor will be hacked off and will be less disposed to any gestures of goodwill. JMHO

 

Regards

 

 

Lantana

 

So, even if I don't write or do write and they don't comply then they can still enforce the debt by producing everything in Court, as the Judge doesn't give a monkeys about the timescale????

 

This isn't as clear cut as I first thought and seems too risky.

 

 

 

Wxxx

[The Lantana]

Absolutely Willowb, it's not clear cut. Most that don't supply, don't supply because they can't - but it could be they're simply inefficient.

 

The non-compliance offence is dealt with by reporting to your local TS, and depending on how strongly you complain they may take action. Different TS's seem to adopt different strategies. They may also be able to help determine whether or not what's been provided to you is an executed agreement.

 

I'd hate to see anyone on this site fall into the trap of thinking that just because s78 wsa not complied with, they're definitely in the clear. They might be, but only might...

 

Regards

 

 

Lantana

[humbleman]

I would agree with Lantanas' view on this.

[ncf355]

Personally,

 

if I consider that they are in breach of s78, either via pure non supply or the prescribed terms as I have researched them not being there I'm taking it to court in all cases

 

That way I am either proved wrong or right by the court and dont have to endure extra time involving countless DCA's phone calls and letters

 

But thats just my approach

 

You can be sure if it was you in the wrong theyd nail you, so why give them the benefit of extra time

 

Also from several cases on here, the TS appear very slow and sometimes useless in enforcing the law, so by taking them to court I can get my side sorted and then pass the case details (assuming its in my favour) to TS for action (as I cant take action for the criminal act)

 

As said before, people really need to get hold of the Statutory Instruments for Consumer Credit Regs 1983 as this goes in depth with the prescribed terms (Also the OFT's FAQ on the subject)

 

All bar one (see below) of the documents I have had from Loan and CCP's has failed the tests.

 

I even have an example of what I consider to be the proper execution from A+L who sent me both the application form and the executed agreement (and the executed agreement is step by step identical to the OFT's view on how the prescribed terms should be laid out) so well done A+L!

[The Lantana]

I'm certainly not here to defend the MIB's and I share the widely held view that they'll screw us any way they can.

 

ncf355, I think your approach is gutsy and I respect it greatly, however many of us (or maybe just me) are not in a sufficiently strong position to accept the downside risks associated with your strategy.

 

In the last analysis these matters may be approached in a number of way's. I say 'each to their own' and lets share our experiences.

 

Have you had a case yet?

 

Regards

 

Lantana

[lookinforinfo]

Willow, Lantana make some very good points in post 53 thus adding to your

confusion.

However I am not sure that I agree with his conclusion.

As the Law stands, while the CCA request has not been complied with, the

debtor cannot be pursued nor interst charged on the debt.

We do not know whether the OA still exists or is simply misfiled. And until the

position is resolved, it seems a waste to continue paying a debt if the agreement no longer exists. And if it does turn up some time later, then one

can resume payments knowing that interest has not been accumulating, and

has given the debtor some breathing space perhaps even to get their finances

back under control. In addition, you can attempt to get your own back by

pushing to get them into Court for being late in compliance.

[ncf355]

Hi,

 

I am not in any way suggesting others take the approach - this is merely my outlook on the situation, I shal be entering trial case 'sometime in the near future' - MIB!

 

Another way to do things that I feel the Judge would look on favourably given the extreme of the case from the now famous 'BMW Lady' (Mrs Wilson? - Upheld under appeal by House Of Lords) who got to keep the car and had the debt cancelled -

 

Loan taken for £5,500

Payments made £6,000

Interest charged £2,500

Balance owed on Loan £2,000

 

I think any judge would consider it entirely reasonable to say they owe you if they cannot produce an executed agreement with the prescribed terms, based on

 

£2,000 (Current balance owed), minus £2,500 (interest they have unlawfully charged) = £500 owed to you (plus possibility of section 69 interest at 8% for good measure)

 

Could always take the approach most have taken whilst going for Contractual interest on charges, of putting one amount and another for an alteranative should the court find the first unreasonable

 

But if you look at the Wilson case, writing of £5,000 and letting her keep the car on the basis of a £250 mistake in the paperwork, there is precedent there (and thats at the highest court in the land!)

[bill-k]

Just my simplistic two pennorth, if I may. Willow, if you focus on what you want from this, rather than what you actually asked for. You don't actually want what you asked for, do you ? Because if you get it, then you've lost.

 

To me, your letter in post #7 is the important document. It puts them in default (by its' date presumably). It may put them in breach, because they clearly admit that they consider that they have sent you an application, as opposed to a contract. It also puts them in breach, as they have stated what seems like a clear denial that you are entitled, or will receive, the additional account detail required by the CCA.

 

So, if nothing else arrives by 14/3, then you have a clear and admitted breach of the CCA, IMVHO. Whether or not they can actually produce the original signed contract (and I believe it has to be the original, if they are to enforce the debt in court), the fact is that they will have to go into court to enforce the debt. Even if they can eventually produce the contract in court, they will still be entering that court in criminal breach of the CCA by not supplying you with your copy + support docs in time. As such, they risk a fine, and possibly other action.

 

Whether or not the application (their description) which you have can be considered a true copy of the contract, they will have still breached the Act by 14/3. As far as I can see, what you want them to supply you with by 14/3 is nothing. You will then have all you need.

 

I doubt very much you will get the written admission that they do not have the original contract, but is it going to be worth them going into court with whatever they have got, and risking both a fine, and unenforceability ?

 

Just my view on it, FWIW - cheers guys.

 

Bill.

[pmhcfc]

Just my simplistic two pennorth, if I may. Willow, if you focus on what you want from this, rather than what you actually asked for. You don't actually want what you asked for, do you ? Because if you get it, then you've lost.

 

To me, your letter in post #7 is the important document. It puts them in default (by its' date presumably). It may put them in breach, because they clearly admit that they consider that they have sent you an application, as opposed to a contract. It also puts them in breach, as they have stated what seems like a clear denial that you are entitled, or will receive, the additional account detail required by the CCA.

 

So, if nothing else arrives by 14/3, then you have a clear and admitted breach of the CCA, IMVHO. Whether or not they can actually produce the original signed contract (and I believe it has to be the original, if they are to enforce the debt in court), the fact is that they will have to go into court to enforce the debt. Even if they can eventually produce the contract in court, they will still be entering that court in criminal breach of the CCA by not supplying you with your copy + support docs in time. As such, they risk a fine, and possibly other action.

 

Whether or not the application (their description) which you have can be considered a true copy of the contract, they will have still breached the Act by 14/3. As far as I can see, what you want them to supply you with by 14/3 is nothing. You will then have all you need.

 

I doubt very much you will get the written admission that they do not have the original contract, but is it going to be worth them going into court with whatever they have got, and risking both a fine, and unenforceability ?

 

Just my view on it, FWIW - cheers guys.

 

Bill.

 

Cabot recently 'tried' this...The defendant (a CAG member) got awarded costs of £50 at the original hearing. The judge gave Cabot 28 more days to produce OA, or it would get struck out. 28 days went past, Cabot did not produce agreement to court, nor did they go to court on the set date, consequently the claim got thrown out...which resulted in one happy CAG member. (I cant find the thread at moment, I still think the DCA involved was Cabot though)

[pmhcfc]

Found it.... http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/64024-kings-hill-no1-ltd.html

[Guest willowb]

Hi everyone, I need to really absorb all this but haven't the time right now.

 

 

I suppose my best bet would be to wait, then when their time is up complain to my local TS office as well as to them. After I get a response one way or the other as to whether infact they do hold all the relevant docs then I can make a decision to stop paying them. What I don't want is to mess up my DMP by stopping payments and then they produce everything and we'll be in a mess again.

 

We don't pay interest at the mo anyway.

 

Wxxx

[rosiecotton]

My initial thoughts would be that as the stamp is present, and the signature is present, you would have a hard time convincing a court that the agreement is unenforceable.

 

Of course it is sloppy and they ought to sign on the stamp or - ideally - in a separate box, but I do feel that what they have done would probably pass muster in a court.

 

I can't read the scan that well - eyes aren't as great as they should be! - but I assume that the detail of credit limit etc was on the document? As it's not fixed sum credit but for a card (running account credit) they would not have to give a total amount of credit, but they should detail the credit limit and the rate of interest.

 

Are there any other details relating to repayments?

 

 

An "application" can stand alone as an agreement provided it meets the prescribed terms, as far as I am aware.

 

I shall also consult with a couple of credit buffs to see if they agree with me.

[FANTASY CHARGES]

consumer credit act 1974

Part IX

 

Judicial Control

 

 

 

 

 

Enforcement of certain regulated agreements and securities

 

 

 

127 Enforcement orders in cases of infringement

 

(1) In the case of an application for an enforcement order under—

 

(a) section 65(1) (improperly executed agreements), or

 

 

(b) section 105(7)(a) or (b) (improperly executed security instruments), or

 

 

© section 111(2) (failure to serve copy of notice on surety), or

 

 

(d) section 124(1) or (2) (taking of negotiable instrument in contravention of section 123),

 

 

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

 

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

 

 

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

 

 

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

 

(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).

 

 

does it state the long term interest rate anywhere ????

[Movingon]

What's your point FC?

[FANTASY CHARGES]

What's your point FC?

 

 

sorry the text changed font and hid my point ( well question ?)which

 

does it state the long term interest rate anywhere ????

because we need th long term interest rate apr etc not the 6 months balance transfer rate ????

[Guest willowb]

but they should detail the credit limit and the rate of interest.

 

The APR was 6.9% (on the top of the form)

 

There is no credit limit stated on the form, it says this in the 'transfer and save' box....

Upon account approval, payments will be sent to your other credit card issuers. The amount of balances we can process will depend on the credit limit allocated

 

This is quite clearly an application form, as Bill said it states that on the form and in the letter but just because they put 'credit agreement regulated.....etc' on it then it becomes an enforceable agreement?

 

I may have filled out dozens of these applications and been denyed facilities but does it mean that 10 years later that company can produce said application form and claim that they have an agreement with me? I think not?????

 

Also, what am I agreeing to here? The APR and balance transfers, yes but there are no ts&cs attached and even if there were, what amount have I agreed to be governed by those ts &cs? i.e., if they now sent me ts & cs stipulating that if I exceeded my limit I would be charged x amount.....what limit?

 

A confused and frustrated Willow:confused:

 

Wxxx

[Guest willowb]

because we need th long term interest rate apr etc not the 6 months balance transfer rate ????

Not that I can see FC.

 

Wxxx

[FANTASY CHARGES]

willow you say The APR was 6.9% (on the top of the form)

 

but this is an introductory offer only for 6 months or whatever then after a fixed time the standard variable rate will kick in !!!

 

NOBODY SEEMS TO GET MY POINT

 

does it mention the standard variable rate ?

sorry our postings crossed

 

i see you answered -- i think this is good not to be there

 

we need a view from those who have been on the site for many months on this

[rosiecotton]

I may have filled out dozens of these applications and been denyed facilities but does it mean that 10 years later that company can produce said application form and claim that they have an agreement with me? I think not?????

 

The fact they have signed it though means that they have approved it and it is possible that if the prescribed terms are all there it could act as an agreement.

 

One of the prescribed terms is that they need to include either the credit limit or explain how the credit limit will be set, which their paragraph may cover.

 

What else is on there about repayments and rates? Anything at all, or just the advertised balance transfer rate?

 

Unfortunately I didn't get the chance to speak to my credit expert colleague about this before I left the office today but I will do so tomorrow.

[Guest willowb]

Hi Rosie:)

 

or explain how the credit limit will be set

I can't see how the paragraph below explains 'how' the credit limit will be set, it only states that one will be set.

 

Upon account approval, payments will be sent to your other credit card issuers. The amount of balances we can process will depend on the credit limit allocated

 

What else is on there about repayments and rates? Anything at all, or just the advertised balance transfer rate?

As far as I can see and have studied (*eek* I'm prone to miss the obvious sometimes!) there is no mention of a rate other than the balance transfer rate which was fixed for 1 year. So the rate I was paying on purchases under this 'agreement' is not stipulated.

 

Wxxx

[rosiecotton]

In my personal opinion there needs to be more detail about what you will be paying and what the APR on purchases / transferred amount after one year would be.

 

They can't get away - on an agreement - with saying "6.9% APR" in the corner, and that's it.

 

 

Strangely I don't get vast numbers of credit complaints, so I have to admit to being a little ring-rusty, but I am sure that once I get the chance to bounce this about among colleagues I will be able to come up with a much more solid answer for you.

[FANTASY CHARGES]

Hi Rosie:)

 

 

I can't see how the paragraph below explains 'how' the credit limit will be set, it only states that one will be set.

 

 

 

 

As far as I can see and have studied (*eek* I'm prone to miss the obvious sometimes!) there is no mention of a rate other than the balance transfer rate which was fixed for 1 year. So the rate I was paying on purchases under this 'agreement' is not stipulated.

 

Wxxx

 

is their any wording which says see xxxxxxx overleaf ?

 

meaning any reference to words on the back as remember you have only seen the front !!!!!and remember just because you have seen a stored copy it does not mean the paper copy exists

[The Lantana]

Good point FC. Cases are often won by claimants on the strength of copy documents alone because respondents simply don't ask for the originals.

 

In the event of a case you are entitled to see the original.

 

Regards

 

Lantana