Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[ncf355]

Lots of new users here these last few days

 

 

So, here's a poser for U all... Is the following a correctly recieved credit agreement, or... Just a copy of an original application form for credit...?

 

Here it is:

 

 

Let the posting begin!

 

 

I really cannot see any room for debate on this - its the same as they sent for mine, practically 0 prescribed terms and a court would not be able to enforce it

 

Yet again, look at the OFT's views on this in this document:

 

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/OFT786a.pdf

 

Mainly around 1.12 - 2.6

 

(text about 'no interspersing' is good too, as from what I've had so far loads break this rule by inserting all manner of junk in the middle of the prescribed terms)

 

 

Another of my 'agreements' states "6.9 APR FIXED" in very bold lettering with no end date, so even if they prove its a executed agreement they owe me a ton of interest (actually, that voids the whole thing doesn it?)

 

Fact: the credit industry have ballsed up very badly and now they are going to pay the price

 

Their agreements are about as likely to stand up as [insert random DIY chain here]'s flat pack furniture or a cheap birthday card

 

[progenic7]

It may be splitting hairs, but the law is straight down the line, no variation at all.

 

You say that the RBS merely rubber stamped your application, by inference there is no signature. Well I'm afraid that does not conform to what is required under the act. Both the 1974 act and the 1983 statutory instruments state that to be truly executed it must be signed by both parts, the only variation of the use of a signature is the company seal.

 

I know that we can all discuss what a signature is, well it is pretty succicnt under law, however, by extension the stamp may be a facsimile of a signature, but if it (in this case) merely says 'RBS' and the date thats not good enough.

 

Mike

 

Ok i see your point, and so reading between the lines this gives us all the right to avoid paying our debts then yes ?

[progenic7]

Sorry mike i missed the point on the RBS bit about rubber stamping, speaking personally on my own agreement, yes it is rubber stamped, but the stamping has RBS in big letters, plus the date, plus a stamped signature.

 

Personally speaking no matter how i try and reason through this argument i always come back to the same point. That is for me that i would be trying to get out of paying what i owe.

Dont get me wrong at all as over the years the banks and CC companies have put me through hell and bought me to me knees, but at the end of the day im a big boy now and i new all along what i was committing to when i signed up.

No matter how its reasoned at the end of the day the debt i owe doesnt go away, and i feel its wrong to try and avoid paying a debt i made by my own actions. Im sure alot of people will say that its nothing to do with trying to avoid paying a debt, but i cant quite fathom that reasoning.

 

I can fully understand the logic and reasoning behind the actual bank "fees" issue, and indeed the reasoning on the Contractual interest issue, aswell as any costs incurred by means of time taken and postage ect ect. But when it comes down to trying to get out of the situation altogether i just think thats morally wrong, and for me one i cant live with.

 

Peace

[joneshousehold]

Ok i see your point, and so reading between the lines this gives us all the right to avoid paying our debts then yes ?

 

What we are looking at is whether the copied document is valid. No moral judgement required. The law is the law. If a large credit industry organisation or 20 have failed to observe the laws of the country then I'm afraid that is their problem.

 

There are many rights and wrongs in the world and we could probably end up in a endless tit for tat argument on this thread that would serve no purpose. I believe it was a judge in one of the many Mrs Wilson cases who said that it may seem harsh for the creditors but the court's job is to just stick to the rules safe in the knowledge that that was what parliament intended.

 

So please don't go down this route, let's have a debate about the legislation.

 

Edit - you added the second post after I had started this so they seem to cross a bit. I understand your thoughts about living with the morals of it all. I have wrestled with my conscience too!

[progenic7]

Jones

 

yeah i see what you mean although me myself i have to question the forces driving the argument ie for what purpose are you looking at the law, there is much more important law issues to look at if you want to put the world to rights surely. So to be honest i dont buy that argument at all, if thats the case maybe saving childrens lives who are at harm may be a better subject matter, than looking into the extremely complex legalities of the CCA, which even the most experienced barristor would have trouble with.

But like i asked before then on what authorities is the issues surrounding the CCA claims being bought to the fore. what i mean is, is there any law you actually have to base this claim upon ? what exactly is the problem from a legally recognisable point of view ? how many proven cases have passed already through the court system.

 

i actually posted in another thread the only case law i could find on the subject of the CCA, im not entirely sure how much it may help but its here any...http://www.consumeractiongroup.co.uk/forum/general-debt/74951-cca-case-law.html:)

 

dont get me wrong i do have issues with the whole argument, but on the other hand as i always do, i play devils advocate as i think both ends of the arguments should be put forward.

 

anyways carry on as usual and dont mind me, im just here to provoke some food for thought

[joneshousehold]

Thanks for your comments. I know you are right from a moral point of view. I have tried the whole helping children thing too, it keeps me awake at night but that's another problem for another day.

 

Like you say, food for thought. It's good to talk it all through. I do feel an element of revenge is driving some of the action for me personally. However when you read some of the posts from desparate people on the forum who are sent into a financial spiral often by a minor indiscretion or a major unexpected problem such as illness, I think the moral argument shifts from the creditors to the debtors. It's that really that makes me fight and work harder on this.

 

It's good really that we remember the reasons why we do things sometimes. Thanks for making me do that again.

[InKogneeToh]

But like i asked before then on what authorities is the issues surrounding the CCA claims being bought to the fore. what i mean is, is there any law you actually have to base this claim upon ? what exactly is the problem from a legally recognisable point of view ? how many proven cases have passed already through the court system.

 

 

 

 

 

Hi

 

You may like to read the following, a now famous appeal to the House of Lords. The claimant, Mrs Wilson won her case in the CA that her credit agreement was unenforceable after a county court judge had initially ruled against her. The CA considered that the harsh consequences to lenders of having an agreement ruled unenforceable was likely to infringe the human rights of the lender and so be incompatible with the Human Rights Act. Read what the HL had to say about that:

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

Regards, Pam

[humbleman]

OK LOOK AT IT THIS WAY

 

You apply for a job, at the interview fill in an Application Form, the company decides whether or not you are a suitable candidate, once they decide they send the successful applicant an offer which they sign and accept the job, when they start the job at some stage they are offerred a contract. It is the contract that rules during the currency of your employment and not the application form. In the absence of any formal contract there are some right you are accorded in law which prevail (in our case the CCA 1974).

[tamadus]

Just to throw my 2 pennyworth into the ring.

 

If this went into a court it would almost certainly be judged as an executed agreement.

 

No additional terms and conditions are needed as the prescribed terms are all in that document. The only standard terms I dont see is one allowing variation, but scrutiny of a better copy may show it is there.

 

The rubber stamp doesnt really make any difference as long as the signature is genuine, which we cant tell by looking at the scan.

 

I got a better look by saving the picture and using fax & picture viewer to zoom in as far as possible. the % rate and APR are there along with the credit limit statement, cancellation notice and the credit agreement warnings. The document is also clearly headed.A seperate sig box for them would have made it well within the requirements.

[tamadus]

Ok i see your point, and so reading between the lines this gives us all the right to avoid paying our debts then yes ?

 

I dont think anyone is really trying to avoid paying what they legitimately owe. I certainly am not .

 

I am looking at credit agreements purely to be absolutely sure that whatever I signed and agreed to is within the law.

 

Some people could argue that bank charges are fair because we agreed to the T&C at the time, but the law has shown the charges are not fair or valid.

 

Likewise if I buy a product I expect it to last a reasonable amount of time, and dont have to replace it at my expense within that reasonable time.

 

I also dont see any reason to allow a CCP to charge me fees and interest (at more than 3 times base rate) if the agreement that allows those charges doesnt stand up under legal scrutiny.

 

I am not the one who drafted the contract (I had to take it or leave it) in accepting it I and thousands of others followed a path the financial institutions were dictating. If their vision and wording fails to pass the tests put in place by the elected government and the courts then it is not my fault or my problem.

 

I am more than prepared to repay any money I have borrowed, IF they are prepared to refund any money THEIR agreement doesnt allow them to charge me.

[joneshousehold]

I have struggled to read all the RBS application form but I thought it referred to the Conditions of Use overleaf. The OP say they had not received a copy of the T&C's and as this represents an other document referred to in this document, then I would say S78 has not been complied with.

 

Also the wording for the signature box must be inside the box but this is shown outside the box.

 

I also cannot see the statement of protections and remedies, main rights which should be in the signature document as well as the loss or misuse of credit token box.

 

I do note this was signed in 1997, were the regulations different at that time perhaps?

 

I also have concerns about the phrase 'I apply for an RBS Advantage Card...' but I can't read them all. I know Tamadus thinks this complies with the regulations so allowing the application to double up as an agreement but I am not so sure as the creditor still has the power to refuse the application and this suggests to me Section 59 is brought into play.

 

I think this latter point needs a lot of debate although in the CCAA thread it has often been chewed over without any real progress. If we could get to the bottom of it in this thread, it would be a very useful exercise. We know the two views are that on the one hand an application can be an agreement if it embodies all the requirements of the CCA and on the other the argument against it is that Section 59 seems to preclude one document acting as both.

 

What we need now is some constructive input about those two arguments to see how much water each holds. Any takers?

[zubo]

Thanks for your comments. I know you are right from a moral point of view. I have tried the whole helping children thing too, it keeps me awake at night but that's another problem for another day.

 

Like you say, food for thought. It's good to talk it all through. I do feel an element of revenge is driving some of the action for me personally. However when you read some of the posts from desparate people on the forum who are sent into a financial spiral often by a minor indiscretion or a major unexpected problem such as illness, I think the moral argument shifts from the creditors to the debtors. It's that really that makes me fight and work harder on this.

 

It's good really that we remember the reasons why we do things sometimes. Thanks for making me do that again.

 

Absolutely... I am committed to ethical business... what you see here is the tip of the iceberg with millions in exactly the position you see posted!!!

I'm afraid for me the moral ground is in my favour - besides on a light-hearted point - I rather fancy calling myself Robin of Loxley - damn why didnt I just change my username???

 

hehe

 

Z

[zubo]

Just to throw my 2 pennyworth into the ring.

 

If this went into a court it would almost certainly be judged as an executed agreement.

 

No additional terms and conditions are needed as the prescribed terms are all in that document. The only standard terms I dont see is one allowing variation, but scrutiny of a better copy may show it is there.

 

The rubber stamp doesnt really make any difference as long as the signature is genuine, which we cant tell by looking at the scan.

 

I got a better look by saving the picture and using fax & picture viewer to zoom in as far as possible. the % rate and APR are there along with the credit limit statement, cancellation notice and the credit agreement warnings. The document is also clearly headed.A seperate sig box for them would have made it well within the requirements.

 

Tam

 

As I said earlier - this may be a fully executed agreement but I would issue a S85 default notice because it was never sent at renewal - which by my reckoning makes it completely unenforceable.

 

Z

[progenic7]

smiling a little here, sorry i havnt bee around this afternoon i have been working on various little papers of my own.

OK i see in one hand the argument people are putting across about this, but every time i look at it, it seems a weak argument.

Now dont get me wrong i would respect a view alot more if someone said "you know what im in deep doo doo, cant see a way out of it, so im going to try and pick holes in the smallest of issues"

or even if someone said f*** em im greedy and im not paying

but honestly to look from an outsiders point of view and try swallow the "were just putting in months and months of work because we feel there may be a indescrepency with an agreement argument" Oh really ? lol

 

wow you charitable people, not that im saying some people arent capable of that, i know they are. It just seems to me that Some people may be using this as a means of not paying, a get out clause if you will. And i just think its wrong thats all.

 

Tam i know you started this thread and im not pointing a finger at all, i suppose i wanted to (as pam has pointed out already) have a reality check here, and just be sure that what is being pursued is all for the right reasons.

 

But i think i have annoyed you lot enough already and before i out stay my welcome i think its time we said...nuff said

 

peace all

 

Johnny

[zubo]

smiling a little here, sorry i havnt bee around this afternoon i have been working on various little papers of my own.

OK i see in one hand the argument people are putting across about this, but every time i look at it, it seems a weak argument.

Now dont get me wrong i would respect a view alot more if someone said "you know what im in deep doo doo, cant see a way out of it, so im going to try and pick holes in the smallest of issues"

or even if someone said f*** em im greedy and im not paying

but honestly to look from an outsiders point of view and try swallow the "were just putting in months and months of work because we feel there may be a indescrepency with an agreement argument" Oh really ? lol

 

wow you charitable people, not that im saying some people arent capable of that, i know they are. It just seems to me that Some people may be using this as a means of not paying, a get out clause if you will. And i just think its wrong thats all.

 

Tam i know you started this thread and im not pointing a finger at all, i suppose i wanted to (as pam has pointed out already) have a reality check here, and just be sure that what is being pursued is all for the right reasons.

 

But i think i have annoyed you lot enough already and before i out stay my welcome i think its time we said...nuff said

 

peace all

 

Johnny

 

Johnny

 

We all respect each others viewpoint and nobody said life is perfect.

I am well aware that some people's motives may not be the same as mine. But who am I or anyone to judge what is truly right or wrong. If I can help anyone then I will because that is who I am.

 

Z

[diskmandave]

This is getting a bit emotive!

 

Just to re-itterate my original post, Trading Standards (Tameside) have said outright that RBoS have complied with the CC Act 1974.

 

What they have not said is wether or not they believe this to be a correctly executed document, so maybe another letter from me needs to be on the way to them.....!

 

Thanks everyone, I was about to give up on this one, we'll keep this going then

 

BTW, thanks to everyone who's clicked my scales on this thread! I can't believe the number of rep's i've had on this post alone!

 

Next chance that I get a few minutes i'll post scans of what I got back from Trading Standards.

 

Good luck & Best Regards to you all,

 

Regards, Dave.

[ncf355]

 

I am more than prepared to repay any money I have borrowed, IF they are prepared to refund any money THEIR agreement doesnt allow them to charge me.

 

Thats bang on Tam!

 

 

My calc is going to be total borrowed + interest charged = total

 

MINUS

 

interest + section 69 8% interest + payments made

 

 

I think thats totally fair -

 

Thoughts?

[m55dlc]

I've only read the first page, but the difference in dates between the first date in the top left hand corner and the date on the timestamp where they have 'signed' the agreement, means they cannot have complied with s63.4, end of story, hasta la vista. This is an absolute and whatever they put up against this is conjecture, irrespective of what any SI states.

[m55dlc]

Oh, and on the legality issue, harrassment is illegal. I've had a CCP send me an illegal default notice, letters asking me to borrow monies from family members and calling me and leaving messages on the answerphone like "I know we're not allowed to call you, but could you call me on ###".

 

This is the same organisation that I missed a payment to and made the next seven months payments to on time, but as I had missed ONE, they felt they were allowed to charge me 7 late payment fees.

 

Certain CCP's are better than others, I just don't like the way some of them operate.

 

If I can prove they are in the wrong, they are the ones at fault. I (personally) have never stated I would not pay back what I owe or what I have spent. The balance on the particular CC in question has never been more than £4k (OK possibly 4.2k). So far they have refunded 2.8k in charges. I'm not being funny, that level is theft, their tactics are underhand and unlawful, it is time they went bankrupt.

[ncf355]

I've only read the first page, but the difference in dates between the first date in the top left hand corner and the date on the timestamp where they have 'signed' the agreement, means they cannot have complied with s63.4, end of story, hasta la vista. This is an absolute and whatever they put up against this is conjecture, irrespective of what any SI states.

 

M55,

 

I'd love you to find things wrong in this, but doesnt 63(4) say that they dont need to send a copy within x days if they send it with the card?

[m55dlc]

M55,

 

I'd love you to find things wrong in this, but doesnt 63(4) say that they dont need to send a copy within x days if they send it with the card?

 

How can they send something they don't have?

 

If they executed the agreement after they sent you the card (months after) they cannot have sent you a copy of an executed agreement with the card as they didn't have an executed agreement at that time.

 

Do you see what I mean? If they claim to have done this using the card mailer, you can turn round and say 'how? the agreement wasn't allegedly executed until April and I applied in Feb'.

[ncf355]

How can they send something they don't have?

 

If they executed the agreement after they sent you the card (months after) they cannot have sent you a copy of an executed agreement with the card as they didn't have an executed agreement at that time.

 

Do you see what I mean? If they claim to have done this using the card mailer, you can turn round and say 'how? the agreement wasn't allegedly executed until April and I applied in Feb'.

 

 

D'oh!

 

Now I see your point!

 

But doesnt this depend on when the card was actually issued?

 

So if they didnt sent the card out until April, theyd be covered?

[InKogneeToh]

Hi m55 and all

 

After reading your comments about s63 compliance I took another look at the whole s62/63 issue.

 

Under s62 (2) it states:

 

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.

 

So - if a mailshot CC application (supposed agreement) is sent to someone, who then signs and returns it, shouldn't there be a copy of this application/'agreement' for him to keep - as per s62(2)??

 

i'e' if we accept the assertion that this document IS also an agreement, then it must be subject to s62.

 

This is what the OFT doc. on cancellable agreements says on the subject:

 

The general requirement for copy documents is that one copy of the agreement (including, if applicable, a notice of cancellation rights) must be given or sent to the customer when the original agreement is given or sent to him for signature. A first copy is not required where the agreement is neither presented personally nor sent to the customer for signature – for example, a document which is also an application form that a prospective customer picks up from a shop counter or from a leaflet dispenser.

 

So it seems that even the OFT thinks an application form can also be an agreement , but this implies that a first copy is only not required if the document is picked up by the customer.

 

Any comments?

 

Regards, Pam

[Seahorse]

This is one of the basis on which I deny that Cabot have supplied me with the original agreement. It IS the application form, and as it was just a fold, lick and stick piece of flimsy card, there is NO WAY that I was supplied with a copy.

 

Apart from that, the whole thing was a shambles anyway, regardless.

[m55dlc]

D'oh!

 

Now I see your point!

 

But doesnt this depend on when the card was actually issued?

 

So if they didnt sent the card out until April, theyd be covered?

 

No, as they have 7 days... erm, just thinking........

If you 'apply' for a card and the card isn't issued for two months, ....

 

you need to check when the card was first used. I give you a 99.8% guarantee that the card was sent before April.