Willowb v RBS MINT CCA

[Guest willowb]

is their any wording which says see xxxxxxx overleaf

Hi FC, yes in the 'declaration' box at the bottom (I can just about make out) it says...... '.....bound by: the general conditions applying to the card as set out separately and the details about the card as set out overleaf both as may be amended from time to time'

Wxxx

[rosiecotton]

I'm not sure where you live or whether you are close to a local Trading Standards office, but some TS offices offer a drop-in service where they can go through your paperwork, see if anything is missing or anything is not quite as it should be.

 

It might be worth finding out whether this is possible? It's usually easier to advise when it's right there in front of you.

[FANTASY CHARGES]

Hi FC, yes in the 'declaration' box at the bottom (I can just about make out) it says...... '.....bound by: the general conditions applying to the card as set out separately and the details about the card as set out overleaf both as may be amended from time to time'

 

Wxxx

 

 

GET THAT LETTER OFF thAnking them for sending the front OF THE APPLICATION FORM and explain you are

 

(1)equALLY INTERESTED IN THE REVERSE FOR CONTINUITY OF THE REVERSE OF THE APPLICATION FORM AND

(2)MOREOVER YOU WOULD LIKE TO SEE A COPY OF THE ORIGINAL "EXECUTED AGREEMENT "

AS WELL AS THE ORIGINAL APPLICATION FORM AND ALSO

(3) THE ORIGINAL TERMS AND CONDITIONS NOT THE CURRENT ONES.

 

RECORDED DELIVERY OF COURSE

[Guest willowb]

Yes ok, thank you FC and thank you again Rosie, I have just emailed copies of my letter to RBS and copy of agreement to my local TS office......

 

Dear Sir Madam,

 

Could you please advise me about the following issue?

 

I have attached a letter which I sent to RBS sometime ago requesting copies of documentation relating to an active account I have with them. I requested this as my right under the CCA 1974 Section 77(1) and Section 78(1). The only documentation that I have received so far is a photocopy of the application form, this form has no credit limit, terms and conditions or APR for purchases (just an APR for balance transfers). A copy of said document has been attached.

 

They have not supplied any separate Ts and Cs or any statements relating to the account, as per running payments, balances and charges.

 

Could you please advise me as to whether you think they have fulfilled their duties under the Act?

 

Any assistance you can offer would be very much appreciated.

 

Thank you

 

 

We'll see what response I get! but I will be working on a letter to RBS, their time is up come next wednesday!!!

 

Wxxx

[bill-k]

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

There is no credit limit stated on the form,

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?

No. It has to fulfil all of the prescribed conditions: The permanent (or long-term) interest rate; The credit limit; The prescribed heading, etc. If it only satisfies one, or two, or three - then it fails. It must satisfy all. (or be exempt for some reason). So, all we need to establish is that there is just one of these conditions not met, and we have a non-compliant document.

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?????

If a bank or firm still have a legal right to demand money from you (an enforceable debt), then they have a legal obligation to produce the document that gives them that right. The original agreement you made with them is that document. Anything else is pants.

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?

Exactly - this is not a complete agreement - it does not fulfil all of the prescribed conditions.

A confused and frustrated Willow:confused:

There, there...

Wxxx

 

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

Got it - this is one of the prescribed conditions which is clearly missing from the document supplied. That omission is all we need. Therefore document = pants = complete non-compliance with CCA.

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

Yes please.

.

[bill-k]

GET THAT LETTER OFF thAnking them for sending the front OF THE APPLICATION FORM and explain you are

 

(1)equALLY INTERESTED IN THE REVERSE FOR CONTINUITY OF THE REVERSE OF THE APPLICATION FORM AND

(2)MOREOVER YOU WOULD LIKE TO SEE A COPY OF THE ORIGINAL "EXECUTED AGREEMENT "

AS WELL AS THE ORIGINAL APPLICATION FORM AND ALSO

(3) THE ORIGINAL TERMS AND CONDITIONS NOT THE CURRENT ONES.

 

RECORDED DELIVERY OF COURSE

 

I may be missing summat here, but what will you have gained by this ? If they sent what you ask for, then you have the agreement you didn't actually want. They have compliance, and therefore enforceability. All with your kind assistance.

Surely it would be better to delay sending this until after 14/3 ? By then, you will have their non-compliance & thus breach of the CCA, and even if they can then supply the documents you are asking for, they may not want to risk enforcing the debt in court, as they will still be liable for the breach of the CCA which occurred on 14/3. Whether they have the original agreement or not.

[Guest willowb]

I agree Bill but when I read posts concerning Judges not being interested in their non-compliance if they are 2 or 3 or howevermany months late in producing it makes me wonder what could happen if I stopped paying them and they took me to Court? would I be liable for costs? a CCJ...what? I may be being a bit 'green' here (what's new!) but I want to be 100% confident and sure before I take a definate step towards the battlefield!

 

Wxxx

I will send that letter but I'll do it next week;) and I may just have confirmation from TS by then as well.

[diskmandave]

Great debate!

 

I'll send to TS too, compare replies from different areas!

 

Mine below (adapted to suit).

 

-----------------------------------

Mr Diskmandave,

,

,

,

.

 

Tameside Metropolitan Borough Council,

Environmental Health & Consumer Services,

Trading Standards & Consumer Services Division,

Environmental Services Department, Council Offices,

Wellington Road,

Ashton under Lyne,

Tameside,

OL6 6DL.

 

 

08 March 2007.

 

Att: Copy documents

 

Dear Sir/Madam,

 

Could you please advise me about the following issue?

 

I have attached a letter that I sent to Royal Bank of Scotland some weeks ago requesting

documentation as my right under the Consumer Credit Act 1974.

 

The only documentation that I have received is a photocopy of the application form.

This form has no credit limit, terms and conditions... etc. Some parts of the photocopy

are also blurred and unreadable, you can also see that the recieved stamp to the top left of

the form and the company stamp to the bottom right of the form are nearly three full months

apart. A copy of said document has been attached along with the covering letter that

accompanied it. The covering letter interestingly has my name and address at the top of the

letter where one would expect it, but then goes on to address me ("Dear") as someone

completely different!

 

You can see from my original letter that I clearly asked to excersise my rights under the

relevant sections of the Act and asked for a "true copy of the original agreement". Along

with the request, payment of £1 was included in respect of the maximum fee payable.

 

Could you please advise me as to whether you think they have fulfilled their duties under

the Consumer Credit Act 1974?

 

Any assistance you can offer would be very much appreciated.

 

 

Yours sincerely,

 

 

 

 

Mr DiskmanDave.

[The Lantana]

Okay, this has been bugging me all day so I've been hunting on the net...

 

Some terms must always be contained in the signature document as described under the heading ‘What the agreement must contain’. But any other term of the agreement can be recorded either in the signature document or in another document referred to in it.

 

What the signature document must contain

 

These must be on the signature document and not on another document referred to.

 

1. A heading in one of the following forms of words shown prominently on the first page:

 

Hire-Purchase Agreement regulated by the Consumer Credit Act 1974

 

or

 

Conditional Sale Agreement regulated by the Consumer Credit Act 1974

 

or, in any other case,

 

Credit Agreement regulated by the Consumer Credit Act 1974.

 

Where the document embodies an agreement, of which at least one part is a credit agreement not regulated by the Act, the word ‘partly’ must be inserted before ‘regulated’ in the heading – unless the regulated and unregulated parts of the agreement can be clearly seen to be separate.

 

2 The name and a postal address of both trader and customer.

 

3 A description (in enough detail to identify it) of any security to be provided by the customer and a description of its subject matter. The description must be in the main agreement but the full terms can be in a separate document referred to in the main agreement.

 

4 Details of any default charges which the customer or a relative of his is required to pay if he breaches the agreement.

 

5 Certain financial and related particulars (see full link).

 

6 Statements of certain forms of protection and remedies provided for the customer by the Act (see pages 12–14 of link).

 

7 A signature box (see Appendix 2 of link).

 

The full text is here:

 

www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf

 

 

Regards

 

Lantana

[bill-k]

I agree Bill but when I read posts concerning Judges not being interested in their non-compliance if they are 2 or 3 or howevermany months late in producing it makes me wonder what could happen if I stopped paying them and they took me to Court? would I be liable for costs? a CCJ...what? I may be being a bit 'green' here (what's new!) but I want to be 100% confident and sure before I take a definate step towards the battlefield!

 

Wxxx

I will send that letter but I'll do it next week;) and I may just have confirmation from TS by then as well.

 

I haven't read those posts, but I would like to see the circs surrounding the Judge's disinterest in non-compliance. It may be that you have to get the TSO involved before you get the Judge's attention. I'm not advising that you stop paying the debt, and I see your point that doing so would be inviting additional strife. But putting the above two things together, are the posts you saw concerning a similar scenario to yours ? I really cannot see how a Judge could be disinterested in CCA non-compliance and/or non-production of original agreement in a case where debt enforcement is the only issue.

 

But for now, all I'm saying is - yes, send the letter that FC recommends, but not until after 14/3. What you decide to do after that depends on what happens after that, but I feel that in any event you will then be in a better position, than if you had written now, and got the remainder of the application agreement back before 14/3. That's all, really.

[FANTASY CHARGES]

willow now for the errrrrrrrrrrrrrrr bit

 

 

if you are cccs you keep paying the same amount well that is according to the gospel of tamadus ( he is rather good)

the others get a bit more !!

 

 

 

Today, 19:28 #3869 (permalink) tamadus vbmenu_register("postmenu_623186", true);

Platinum Account Customer

Site Helper

 

Join Date: Jun 2006

Location: Shropshire

Posts: 1,630

 

 

 

Re: Consumer Credit Act Agreements

Quote:

Originally Posted by zubo

Folk

 

A quick question for anyone - I'm trying to help a cagger - accepting the risk that a creditor can pull a fully executed agreement out of the bag 3 months or more after the 12 days and get a court permission to exercise his rights -

 

If the debt is part of a dmp (CCCS) and the creditor cannot respond to a CCA s77-79 - can the cagger pull the unenforceable debt out of the dmp?

 

Thanks

 

I already have stopped payments from a CCCS plan to one CCP that has failed to send anything other than an application form. The total into the plan will not change but that little bit will be spread over the remaining creditors.

[Guest willowb]

Hello people:D

 

But for now, all I'm saying is - yes, send the letter that FC recommends, but not until after 14/3. What you decide to do after that depends on what happens after that, but I feel that in any event you will then be in a better position, than if you had written now, and got the remainder of the application agreement back before 14/3. That's all, really.

 

Thank you Bill:)

 

If the debt is part of a dmp (CCCS) and the creditor cannot respond to a CCA s77-79 - can the cagger pull the unenforceable debt out of the dmp?

 

Thanks

 

I already have stopped payments from a CCCS plan to one CCP that has failed to send anything other than an application form. The total into the plan will not change but that little bit will be spread over the remaining creditors.

Ok, I get that now...thank you:)

 

Willow have a look at Laistes thread (do a search on restons i'll get a link in a sec) she went to court on tuesday for a prelim hearing and the judge wasnt that interested in the CCA being supplied late.

 

edit link added - http://www.consumeractiongroup.co.uk/forum/legalities/25668-curious-twist-two-cca-13.html?highlight=restons

 

 

 

 

oh yes - also tam and FC are right - CCCS will take the same amount monthly and spread it over your other creditors. Just you get free earlier. Don't stop paying anything tho.

LOL I found it and read it before you linked it!!! what an eager beaver I am:rolleyes: thank you Karn;) ......Bill, you should read it it's a great thread. It is definately the one I was referring to earlier, I think I read a quote by Lantana in this or another thread......part of this post.....

 

Hi Lantana,

 

Not in the pub celebrating, just about to open a bottle of wine for reasons of despondency and fury!

 

To be honest I'm surprised I've been able to put fingers to the keyboard given how mad I am! The Judge wasn't at all interested in when HFC received the Crt Order and the fact they lied. Wasn't interested in whether a telephone call took place or not, of course as you know it didn't and yet again...they lied!

 

He has let them unilaterally take off the penalty charges and collection charge, without the issue being examined at trial. The conversation from start to finish was a (I'll settle for) b****y joke, don't want to get censured by the mods! He made some very bizarre comments which I will be able to quote verbatim as soon as I get a transcript of the call, which we're entitled to.

 

Just to give you a flavour of his perspective on things, the only valid issues which are examinable at trial are:-

 

1. Whether there is a valid agreement.

2. Whether it has been breached

3. Whether the claimants are entitled to enforce.

 

This statement isn't verbatim, but in response to my comment that the charges are an express term of HFC's contract, present since the contract's inception and need to addressed at trial, along with the interest levied on said charges and that I intend to claim damages under consumer regs 99, he said the fact that the claimants have abandoned that part of the claim, means that issue is closed!!! I really pushed him on these issues and at one stage he actually said (in relation to the charges) that the Crt is not going to be used as a "public relations exercise!" What??? He kept on referring to the OFT's ruling on charges and the £12 fee. I pointed out, whether or not this is fair has to be tested in Crt!

 

At one point he even made the loaded comment that the shareholders of HFC deserve to have the credit limit observed and an outstanding debt paid! Sounds like judgment before a trial to me!!!

 

He was irritated by me, it was obvious. I put everything to him in a polite, reasoned but firm manner, but I got the distinct impression that nothing I said was going to make a jot of difference!

 

The only sanction against them for merely filing their App Notice late is costs in the case, that's it!

 

I am not a happy bunny at the moment as you can imagine, what took place this afternoon was an absolute farce!

 

I'll stay around to here everyone's comments. By the way, both my husband and I really appreciate the great supportive comments posted last night and this morning!

 

Regards,

 

Laiste.

 

The issue isn't over yet though!

 

Wxxx

[The Lantana]

Does the document you signed make any reference to repayment?

 

Regards

 

Lantana

[bill-k]

......Bill, you should read it it's a great thread. It is definately the one I was referring to earlier, .....

 

I've SKIMMED THROUGH the thread - and there appears to be previous history with this, but it is not clearly mentioned as far as I can see. There appears to have been a previous claim for penalty charges, which is why I think they have taken action to enforce the debt in apparent response to the CCA request. It actually appears to me to be in response to something previous, which is not mentioned in the thread. Personally, I don't think we have the full story behind this. I can obviously see similarities between your thread and this, but I certainly would not draw many parallels.

 

What I don't like is that it looks to me as though we have the Old Boys' Network in place here - or perhaps that society which concerns itself with freedom & masonry. I have to agree with you that you have very little chance when such people in power behave so despicably. If you're up against those closed ranks, then from my experience I would have to say I think you're dead in the water, IMVHO. Sorry.

 

I can only suggest you hope that you get a Judge with a sense of decency. But hope is the last one of the "Four Candles," so try not to let me, or some other joker put that out for you.

 

The issue isn't over yet though!

 

...I Hope not.

 

XXX

[Guest willowb]

**eek** I know:-|

 

Does the document you signed make any reference to repayment?

No, I've read it over again and can't find any reference to repayments. Why?

 

Wxxx

[The Lantana]

Then, even the old boy network can't enforce IMHO - you didn't agree to repay.

 

Unless they have another agreement signed by you.

 

Regards

 

Lantana

[Guest willowb]

Well, that sounds hopeful!

 

So, plan is....I've already emailed TS so I'll wait to hear from them and next week I'll compose a letter asking for the required docs and if they still can't produce them then I'll call their bluff:eek:

 

Wxxx

[diskmandave]

Without reading for hours (lol!), don't know if this has been posted earlier...

 

Trading Standards Central - Trading Standards and Consumer Protection information for the UK

 

Regards, Dave.

[ecobabe]

check peterbard's posts i'm sure he got letter from Head of trading standards saying categorically that an application form is not a properly executed agreement.

[diskmandave]

check peterbard's posts i'm sure he got letter from Head of trading standards saying categorically that an application form is not a properly executed agreement.

 

Thanks for that, can anyone point me in the right direction and i'll go from there.

 

On a Trading Standards note, posted what RBoS sent me along with all correspondence on the 8th March, highly surprised to have had a 'phone call today (not even 2 full working days) whilst at work, and got home to message left, they're going to send some official forms to complete. Wow that was quick!

[ecobabe]

think it's on general forum on consumer credit agreements thread

[The Lantana]

Well I finally had my agreement out of MINT today, 9 days into the 30 day bit. I need to take a magnifying glass to it, but when I do I expect I'll see an example of an almost perfectly executed agreement under the CCA74. I say 'almost' because I cannot see where they've signed it, only stamped.

 

They failed under other aspect of s78 i.e. statements etc. but the bottom line is I think they can win in court with this, albeit I'd still insist on the original. I'll now work hard to avoid that course of action if at all possible.

 

To be fair to MINT they haven't treated me unfairly, unlike MBNA!

 

Regards

 

Lantana

[FANTASY CHARGES]

Well I finally had my agreement out of MINT today, 9 days into the 30 day bit. I need to take a magnifying glass to it, but when I do I expect I'll see an example of an almost perfectly executed agreement under the CCA74. I say 'almost' because I cannot see where they've signed it, only stamped.

 

They failed under other aspect of s78 i.e. statements etc. but the bottom line is I think they can win in court with this, albeit I'd still insist on the original. I'll now work hard to avoid that course of action if at all possible.

 

To be fair to MINT they haven't treated me unfairly, unlike MBNA!

 

Regards

 

Lantana

 

WHAT YEAR are we talking about ? and remember you want to see the back of the original and of course tou want to see the ORIGINAL TERMS AND CONDITIONS when you joined

[The Lantana]

Hi FC, the agreement dates from early 2004 and the original application was via internet. There's no need to see the back as all the prescribed details are on the face of the document. I've been following the valid agreement debate with great interest and I am satisfied this is an effective agreement - I'd scan it for everyone to see if I could.

 

I have yet to see the original T&C's.

 

Regards

 

Lantana

[FANTASY CHARGES]

LANT

 

I POSTED THIS ON THE big thread but "it went over their heads"

 

 

=========================================

62 Duty to supply copy of unexecuted agreement

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

(2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

(3) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

 

63 Duty to supply copy of executed agreement

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—

(a) subsection (1) applies, or

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

(3) In the case of a cancellable agreement, a copy under subsection (2) must be sent by post.

(4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.

(5) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

 

64 Duty to give notice of cancellation rights

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

(a) must be included in every copy given to the debtor or hirer under section 62 or 63, and

(b) except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

(2) In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either—

(a) it is sent by post to the debtor or hirer before the credit-token is given to him, or

(b) it is sent by post to him together with the credit-token.

(3) Regulations may provide that except where section 63(2) applied a notice sent under subsection (1)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.

(4) Regulations may provide that subsection (1)(b) is not to apply in the case of agreements such as are described in the regulations, being agreements made by a particular person, if—

(a) on an application by that person to the Director, the Director has determined that, having regard to—

(i) the manner in which antecedent negotiations for agreements with the applicant of that description are conducted, and

(ii) the information provided to debtors or hirers before such agreements are made,

the requirement imposed by subsection (1)(b) can be dispensed with without prejudicing the interests of debtors or hirers; and

(b) any conditions imposed by the Director in making the determination are complied with.

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

========================= =======

.

Have just quoted section 62-63-64 so we can see what we are talking about

 

========================= =============

 

Ok these modern issuers of credit card say these application forms are the agreement -- lets go along with that idea for the minute

Now this application form in front of me thinks according to the words on it that it is an agreement . yes we will call it an unsigned agreement until i sign it

 

 

On it Just above the box to sign is a box

 

YOUR RIGHT TO CANCEL

Once you have signed the agreement you will have for a short time a right to cancel it . Exact details of how and when you can do this will be sent to you by post by the creditor.

 

Looking at 64b I sign the form “sit on it for a couple of days” then post it

 

Now the credit card company

Can

(A) say when I sign the form then the agreement is made

 

(b) after the successful credit cheque the agreement is made on the day of the credit check although i will normally not know what date that was

So what does sent mean (does that mean if we look at the envelope and the see a late postmark) we have the chance of a

Now I’ve just looked at the t & c (when you get the card) and there are no mention of the actual duration that you have a right to cancel

Try it for yourself

 

 

you know we never get the exact details

so the bit in red applies ???

 

A cancellable agreement is not properly executed if the requirements of this section are not observed.

 

so lant can you see any angle or anybody else