Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[davefirewalker]

Hi Jay

 

As you know, any document signrd by the debtor as long as all the precribed terms are there "can" be classed as an agreement. If it is signed by both and has all the terms its almost 100%. BUT they have a duty to comply with the law and if they havent sent out any other copies or cancellation notices then by default it is unenforceable

 

As far as I can see any how

 

Dave

[Jaranius]

xx

[zubo]

Hi Dave,

So my statement below, posted earlier, appears to be correct:

 

CCA 1974 - with reference to noncancellable agreements

Section 127 states:

 

(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).

 

 

My opinion:

Clearly, non-cancellable agreements are the exception to the rule and application forms can double as agreements as long as they are signed by the debtor and all the prescribed terms are legible, correct and included in that very same document.

 

 

I cannot understand why the school of thought which seems to be that some application forms (which meet the: signed, legible, correct and prescribed rules) cannot double as agreements still exists? Hence the reason why I asked for them to enlighten me, so I could consider the matter from their viewpoint. As I said, I would like to be proven wrong, which my wife says is ironic!

Jay-R

 

Jay-R

 

Read what the Minister says about Application forms... also consider... an Application IS precontractual particularly in the description previous... got go big bus to catch... later

 

Z

[Jaranius]

xx

[Peterbard]

HI

 

 

 

Thanks Peter

 

Just to be absolutely clear:

 

A personal Loan is applied for over the phone in May 2001.

 

Partially complete papers are sent to you - your name, address, telephone number,employment details etc., which you gave the lender over the phone.

 

It is an application form, as it clearly states this, but it also has the heading "Credit Agreement....." and it also states "whether or not the loan is granted a record of the search will be made against your file ... we search the files of one or more credit reference agencies and use an automated decision making system (credit scoring) as part of the process when assessing this application for credit."

 

You complete and sign the form which already contains all the legible and correct prescribed terms and a box for the lender to sign as well as the terms and conditions.

 

You have no face to face negotiations with the lender, as it is all done by telephone and mail contact. When you return the application form (which also states credit agreement), by post, the lender signs it.

 

You do not receive a copy of anything until some 5+ years later when you request it via a CCA letter and £1 payment and it has been signed by the lender.

 

Is it a) just an application form?

b) an application form and an agreement combined?

c) none of these? (if not, what is it?)

 

Is it 1) improperly executed?

2) totally unenforceable?

3) enforceable with a court order?

 

I am still unsure to say the least. There is no cancellation notice or section on the document.

Jay-R

The bit that says agreement is an agreement it is correctly executed if it meets the criterea discussed on here a hundred times there is nothing wrong with them sending you a application and agreement now of course they wouldn't have to because of the distance marketing regs

As for the copy yes you would recieve a copy althuogh of course their would not nesseseraly be any cancellation details on it entirely up to the lender in this cas on a none distance agreement for credit card a copy must be sent with the card or before. 63 (Something)

 

 

Regards

 

Peter

[Peterbard]

Jay-R

 

Read what the Minister says about Application forms... also consider... an Application IS precontractual particularly in the description previous... got go big bus to catch... later

 

Z

HI

Yep it is so is am unexecuted agrement but that is where the similarity ends

From a correspondance with the oft this may help.

On the other hand, if the consumer has signed a consumer credit agreement, then as you rightly point out, the Act and its Regulation require the creditor to provide the consumer with certain pre-contract information and cancellation rights in certain circumstances once the agreement is signed. For example, the Consumer Credit (Disclosure of Information) Regulations 2004, which came into force on the 31 May 2005, requires the creditor to provide pre-contractual information about the key features of prospective agreements. In addition, the Financial Services (Distance Marketing) Regulations gives the consumer cancellations rights in respect of distance contract for consumer credit (a cancellation period of at least 14 days from the time the agreement is executed); whereas the Act only provides for cancellation of those credit agreements where antecedent negotiations include oral representation made in the presence of the debtor and where the agreement is subsequently signed off trade premises. The Act allows a five day cancellation period starting from the day the customer receives either a second copy of the agreement or a separate copy of the cancellation rights. The rules in relation to agreements cancellable in this way can be found in sections 66 to 68 of the Act

I hope you find this information useful. A copy of the aforementioned regulations is available on the HMSO website at www.hmso.gov.uk and our guidance booklet and more detailed Frequently Asked Questions on them can be obtained at www.oft.gov.uk. If you have any queries on the Act and its Regulations may wish to contact your local Trading Standards Service, who may be reached at: http://www.tradingstandards.gov.uk/

Regards

Bayo Sholotan

Consumer Credit Enforcement

Markets and Projects Division

 

Peter

[Jaranius]

xx

[evelyndarling]

i find all this so confusing. in part i understand certain aspects of the application/agreement thing, what with prescribed terms being there and so on, but i also think that if an application form can be deemed as an agreement, then someone is a bit barmy. what is then to stop companies digging out applications for things people didnt get and claiming they agreed to something? what stops my brother or neighbour or whoever putting my name on something and signing it and sending it off. its seems so un-fraud proof... i mean, even if you do something like forget your internet password on something, they email you to make sure it is you, are they saying that a company will just take a form and thats that? im an intelligent girl, but i just cant get my head around it. if they just send out the cards, or products without some intermediary form of some sort, how come everyone isnt defrauding everyone else?

[Peterbard]

HI

No the bit headed application form is an application form and the bit headed agreement is an agreement.

Regards

peter

[Jaranius]

xx

[Peterbard]

i find all this so confusing. in part i understand certain aspects of the application/agreement thing, what with prescribed terms being there and so on, but i also think that if an application form can be deemed as an agreement, then someone is a bit barmy. what is then to stop companies digging out applications for things people didnt get and claiming they agreed to something? what stops my brother or neighbour or whoever putting my name on something and signing it and sending it off. its seems so un-fraud proof... i mean, even if you do something like forget your internet password on something, they email you to make sure it is you, are they saying that a company will just take a form and thats that? im an intelligent girl, but i just cant get my head around it. if they just send out the cards, or products without some intermediary form of some sort, how come everyone isnt defrauding everyone else?

 

Hi

An application form can not be confused as an agreement because it is an application form.

You can tell the difference it will say aplication form on the top ,if they have sent you a credit token they have commited an offence under section 51 and if at a latter date you decide to challenge any debt on the card it would be unenforceable so why would they do it.

 

Peter

 

Peter

[Jaranius]

xx

[evelyndarling]

Hi

An application form can not be confused as an agreement because it is an application form.

You can tell the difference it will say aplication form on the top ,if they have sent you a credit token they have commited an offence under section 51 and if at a latter date you decide to challenge any debt on the card it would be unenforceable so why would they do it.

 

Peter

 

Peter

 

but then where do you draw the line. what i have says "application form" at the top, but then in a box it says "credit agreement", but in the same box it goes on about if this is accepted... it has none of the prescribed terms and i didnt date it when i signed it. also the creditors signature is rubber stamped. i just feel like its a bit like applying for a job, and not getting it, but the employer telling inland rev you work there and owe tax just cause you signed the application form.

 

maybe im missing something bigger that i just havnt seen.

[Peterbard]

But having loan agreement as a title and referring to it as an appliction as per the quotes in my posts means that it doubles as BOTH because it's all on one A4 paper and you only sign it once. They seem inseparable.

 

If It says agreement and has space for two signatures it is an agreement the sreditor does not have to sign the other box and execute it.

 

The issue here is if when you apply for you section78 you are sent a dockument that says application form onthe top will it be enforceable and the answwer is no it will not.Beause appart from the prescribed terms the signatures the cancellation noticesthe agerreement must have one more aspect to conform to section 127 it must be an agreement.

 

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

Not application or letter from your aunt nelly even if it signed has all the terms and copies of itself right left and center.

NOw for gods sake change the subjest.

Peter

Peter

[evelyndarling]

 

Point taken, but the new CCA 2006 takes away the safeguard in CCA 1974 section 127 3-5, so we seem even more vulnerable and at the mercy of lenders and fraudsters alike.

 

However, it would seem that if you refuted the allegation that you had applied for the said credit card or loan, because they were unable to find a bonifide agreement and produced the application form (legible, correct prescribed terms and signed), they would then need to trace the funds to ascertain whether or not it had been placed into an account held by you and that then would be verification. Just my opinion, so I don't know if this would be the correct procedure.

 

Jay-R

 

 

true, i mean, i do understand the whole theory on the application/agreement to a point, i just think that consumers need protecting more and companies need to be regulated harder. my issue is i've paid back what i owed, i'm now paying charges that were over the odds, and the DCA cant even prove to me that they are entitled to be taking the money.surely it will be terribly time consuming and painfull to start tracking funds, instead of bombarding people with junk they should set out an application, THEN agreement process. there should be no two ways about it. which is what i feel there is. its all so damn sketchy.

[Jaranius]

xx

[Jaranius]

xx

[evelyndarling]

 

 

 

 

I agree.

 

quote]

 

I think you need to S.A.R - (Subject Access Request) (Subject Access Request) so you can identify charges and claim back unlawful penalties.

 

Don't forget in my scenario that I was never at any time referring to a credit card application/agreement, ONLY a loan application which doubled as an agreement dated before May 2005.

 

 

im already in the process, the lengthy wait at the moment. i dont know, i think that they make it very difficult for the normal man/woman on the street to make any sense of anything. i feel sorry for people who are too afraid to stand up for themselves. etc etc. im going off on one, sorry!

[Jaranius]

xx

[InKogneeToh]

HI

No the bit headed application form is an application form and the bit headed agreement is an agreement.

Regards

peter

 

Hi Honey - I'm HOME!!!

 

Yes, I am here to haunt you again Peter!

 

So - what about applications forms that say 'Application' on them, but have a statement in the signature box saying ' this is a Credit Agreement regulated by.......etc.'?

 

 

Also, I HAVE seen the letter from 'The Minister' about it being unacceptable to send a copy of the application form in response to a CCA s77/78 request. But if this is all there is, and it DOES contain all of the prescribed terms and is signed by the debtor, is this not the type of 'document' referred to in s127(3)?

 

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).

 

 

It doesn't say 'unless an agreement'

 

Regards, Pam

 

 

 

 

[zubo]

Can't find the posting. Can anyone post the Minister's statement here?

 

Does it have something to do with CCA 1974 section 59 which states:

 

 

 

I interpreted section 59 as referring to an agreement which you sign to purchase a an item which stated that you HAD to enter into a credit agreement because you could only buy it on credit - e.g. If I wanted to buy a car from the AA, I could not be obliged to take out the AAs credit agreement in order to purchase the car, because that obligation would render the agreement void (in other words, you could not hold me to it).

 

Still willing to consider the school of thought which disproves my own, provided it is backed up with evidence of course.

 

 

Does an completed loan application form (dated 2001, signed, correct, legible with all the prescribed terms, where no face to face talk has occurred between the lender and prospective borrower) come under section 59 because it is purporting to bind a person into a prospective regulated agreement?

 

Jay-R

 

Jay

 

I think you are wrong regarding applications and concur with the way Peter describes it.

IF the document is headed Application then regardless of later references to an agreement regulated by CCA it is a precontractual document. The first stage towards the agreement between the debtor and creditor. In exactly the same way that you see a nice suit in a shop window priced at £50 - it is an offer to enter into an agreement. At any time both parties can decline.

DTI

RT Hon Ian McCartney MP

Minister for Trade Investment and Foreign Affairs

says: If Mr Bardsley feels the rules are being flouted he should report the companies concerned to Trading Standards and the Office of fair trading. It is also a breach of the Act and the Regulations to send the application form rather than a true copy of the agreement.”

 

The Act and SI regs are also very clear on how infornfmation should be presented in an Agreement:

 

2.8 What heading and sub-headings should be used?

Reg 2(4) requires a heading to the agreement in one of the forms set out in Sch 1 para 1(1). If none of these is applicable, the heading prescribed in para 1(2) must be used. See also Q2.9-13.

Reg 2(4) also requires sub-headings in relation to blocks of information appearing subsequently in the agreement. The prescribed sub-headings are ‘Key Financial Information’, ‘Other Financial Information’ and ‘Key Information’ – see Q2.16-18.

2.9 What if more than one heading is applicable?

An agreement may comprise elements falling into different categories. However, Sch 1 para 1(1) permits only one of the prescribed forms of words to be used. It is not permissible to include two or more prescribed headings in the same agreement. In such cases the alternative heading prescribed in para 1(2) must be used.

 

from OFT Notice Failure to provide CCA

 

 

Z

[hellhasnofury]

Hello,

 

I am sorry, but I have a headache, because I have been banging my head of the wall in total frustration regarding a credit agreement re a application form this afternoon.

 

I have tried to keep up with all the information on this thread and the credit agreement thread, but I am getting more and more confused by the post.

 

Can some one please advise me as to what I now do,

I sent the Natwest a cca template request(plus £1) for a cc on the 6th March, I received a letter from some rude condiscending employee:mad: (Senior CRA Officer) on the 29th April.

 

Quote

 

Your request for documents contains some misconceptions about your entitlement to information in a specified form and our obligations to supply that information. So that there are no misunderstanding here we will set the record straight on the format of the information we are obliged to provide you.

 

Your written request for information made under s78(1) of the CCA must be accompanied by payment of a fee of £1. We are obliged to provide you with a 'true' copy of the credit agreement and a statement of financial information relating to the account, namely the state of the account, amount currently due, with amounts and due dates of future paryments that still require to be made. In terms of CCA copy document regulations, the true copy requirements can be satisified by providing a copy agreement at the date the card agreement was made and providing that plus a copy of the current terms of the card agreement. We are not insisting on payment of the £1 and enclose the s78(1) information.

 

The have enclosed a copy of a ilegible application form, It is a very bad photocopy so I cannot see if it contains the prescribed terms. The have also sent a typed A4 sheet of the terms and conditions, with my name and address and account no typed on the top. It is not dated,

 

I have today wasted my time ringing the OFT who stated it was nothing to do with them and told me to ring the fsa, who stated it had nothing to do with them and to ring the oft, who I rang again, who stated it had nothing to do with them. and to ring the fsa.

 

I did eventually snap and told the oft that supposedly that were there to help and protect consumers, and if they could not advise me, who could, well I never the fsa. so on and on it goes.

 

At the end of the conversation they did mention I could aproach the FOS, they might be able to help me.

 

Talk about passing the book.

 

Sorry to rant:cry:

 

Any advise please:confused:

[humbleman]

Hello,

Quote

 

Your request for documents contains some misconceptions about your entitlement to information in a specified form and our obligations to supply that information. So that there are no misunderstanding here we will set the record straight on the format of the information we are obliged to provide you.

 

Your written request for information made under s78(1) of the CCA must be accompanied by payment of a fee of £1. We are obliged to provide you with a 'true' copy of the credit agreement and a statement of financial information relating to the account, namely the state of the account, amount currently due, with amounts and due dates of future paryments that still require to be made. In terms of CCA copy document regulations, the true copy requirements can be satisified by providing a copy agreement at the date the card agreement was made and providing that plus a copy of the current terms of the card agreement. We are not insisting on payment of the £1 and enclose the s78(1) information.

 

 

This is their standard reply.

 

Have a look at this

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-326.html#post784693

[Peterbard]

Hi Honey - I'm HOME!!!

 

Yes, I am here to haunt you again Peter!

 

So - what about applications forms that say 'Application' on them, but have a statement in the signature box saying ' this is a Credit Agreement regulated by.......etc.'?

 

 

Also, I HAVE seen the letter from 'The Minister' about it being unacceptable to send a copy of the application form in response to a CCA s77/78 request. But if this is all there is, and it DOES contain all of the prescribed terms and is signed by the debtor, is this not the type of 'document' referred to in s127(3)?

 

3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied withunless 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).

 

 

It doesn't say 'unless an agreement'

 

Regards, Pam

 

 

 

 

 

 

GOd Pam My Eyes

 

NO it doesen't say "unless a Banana" either why should it it is in the section signing of agreements the terem document is used because it is easier than writing executed or unexecuted properly or improperly executed agreement that is all.

 

The court possibly could rule to enforce as you say and the valid questio n when i put it to the dti was," would they enforce it" the answer was no not in a month of Sundays.

 

If you go into a bank and sign an agrement when you hand it over to the manager you are in effect using it as an application but it is an agreement neverthereless even if it is not executed untill he signs it .If you go to the same bank and fill in an application and hand it over to the manager he will have you thrown out for being a twit.

 

As i keep saying the section you keep quoting from is called signing of agreements,not signing of application forms.

A properly executed agreement has the words "This agrement" in virtually every box in the agreement all the sig boxes cancellation, and whataver start with the words this agreement or have them in the text.

Aplication forms do not because they are not agreements.

 

Do you really think that a court would enforce a document that was presented as an appplication form as an agreement wouldn't it be considered to be missrepresentation wouldn't it be absurd.

I am sure their are many cases where you could present a document as one thing when it was planely something else their would be no law saying this was unacceptable, it just would be to rediculous to legislate for.

Try writng "This is a season ticket for main road" and copying all the information required for that document on the back of a bus ticket. Rediculous? yep but there is no law that says it isn't acceptable would a court accept it because it had the correct information on it, No i don't think so.They would say sorry this is a bus ticket like they would say no sorry this is an application form.

 

Regards

 

and stop shouting it's very unladylike and it hurts my eyes

 

Peter

[Peterbard]

GOd Pam My Eyes

 

NO it doesen't say "unless a Banana" either why should it it is in the section signing of agreements the terem document is used because it is easier than writing executed or unexecuted properly or improperly executed agreement that is all.

 

The court possibly could rule to enforce as you say and the valid questio n when i put it to the dti was," would they enforce it" the answer was no not in a month of Sundays.

 

If you go into a bank and sign an agrement when you hand it over to the manager you are in effect using it as an application but it is an agreement neverthereless even if it is not executed untill he signs it .If you go to the same bank and fill in an application and hand it over to the manager he will have you thrown out for being a twit.

 

As i keep saying the section you keep quoting from is called signing of agreements,not signing of application forms.

A properly executed agreement has the words "This agrement" in virtually every box in the agreement all the sig boxes cancellation, and whataver start with the words this agreement or have them in the text.

Aplication forms do not because they are not agreements.

 

Do you really think that a court would enforce a document that was presented as an appplication form as an agreement wouldn't it be considered to be missrepresentation wouldn't it be absurd.

I am sure their are many cases where you could present a document as one thing when it was planely something else their would be no law saying this was unacceptable, it just would be to rediculous to legislate for.

Try writng "This is a season ticket for main road" and copying all the information required for that document on the back of a bus ticket. Rediculous? yep but there is no law that says it isn't acceptable would a court accept it because it had the correct information on it, No i don't think so.They would say sorry this is a bus ticket like they would say no sorry this is an application form.

 

Regards

 

and stop shouting it's very unladylike and it hurts my eyes

 

Peter

Hi Pam

Just l;ooking at your post again

 

No One is saying that 127(3) makes any document with the prescribed terms and signature unenforceable. If it is not in the prescribed form it simply puts it back to being enforceable only by the order of the court.

And what the DTI OFTand most of all me are saying is that a court would not enforce under the circumstances you outline.

 

Peter Your Pal