Credit AGREEMENT -or- APPLICATION? RBS Advantage Card

[carinas]

the thing is i can prove it never existed (they cant supply agreement), i can prove it did exist (i can supply agreement/i am claiming charges) So if they argue it never existed then why have i paid them more than £5k and if they argue it did exist then i will claim my charges ppi etc back which is more then £3k.

 

I cant see how it is financially valid for them to defend this claim. Cant wait to see the defence.

[Peterbard]

HI

 

I hope you are correct.

 

Best Wishes

 

Peter

[Guest louis wu]

Have read the first 130 (my god, only half way through:o ) pages of the CCA thread, and all of this one, and feel totally cabbaged.

 

I am beginning to understand the principles of this act, but the same questions keep appearing always with slight variations in answers.

 

The basics elements which need to be present are these

 

QUOTE (from page 6 by Pam)

 

So the court will consider any old document, written in any form provided that it has all the prescribed terms and the debtor's signature. The minimum requirement is therefore:

 

1) a credit limit or statement as to how/when it will be determined

 

2) Interest rate

 

3) rate/frequency of repayments

 

4) Debtor's signature

 

So, if you have been sent any form of document that contains these requirements you are not on safe ground!!

 

 

 

 

 

Then you get the following

 

 

 

QUOTE (from page 7 by Jones)

 

So to comply with the regulations of S60(1) that document signed by the debtor would need

a) the rights and duties conferred or imposed - I read this to mean all the terms & conditions (plus the rights under the Act?)

b) the amount and rate of the total charge for credit - which would be your points 1, 2 & 3 in post number 117

c) the protections and remedies available under the Act - this includes all the boxes that state YOUR RIGHTS etc (perhaps not necessarily in boxes or in places stipulated)

d) any other matters the Sec of State thinks desirable - so anything in the later regs

 

I would also try and argue that the phrase '...itself containing all the prescribed terms of the agreement...' means there must be all the terms where they are prescribed by regulations.

 

I believe this may mean that the document signed by the debtor must have more than your list. I am interested in your thoughts on this.

 

 

 

 

 

So, is it safe to assume that the info in Pams post are the minimum details required, anything less than the total list, and you've got them. Then, anything missing from Jones list, and its grey area time (ie no T&C's), and it would need a judges decision as to whether it is enforcable. So, the more missing, the more leverage could be applied to said judge to dismiss the document as it does not conform to the CCA act.

 

 

I know it's not as clear cut as that, and my summery is about as subtle as a breeze block, but I think I need some reassurance that I am at least on the right track for getting this into my thick head.

 

 

Going to lie down in a dark room for a couple of minutes, then back to this totally addictive topic

 

Thanks

 

Louis

 

PS If I've got it really wrong, please go easy on me, and I'll crawl back under my rock to nurse my aching head:)

[itsmeandonlyme]

Hi

This takes a bit of thinkiing about it is something that has come up before.

If you are claiming unfair penalty charges then you would have had an account,but you have just shown that one never existed. I would be interested to see hear if their defense picked up on this.

 

Regards

Peter

 

 

Hi Peter,

no nothing has been mentioned in their (WF) defence re: unforceble agreement...I haven't informed that their agreement is unenforceble yet ....the more i read through it the more i feel that the defence is very childish+ thay asked for not more than £500 if they win..but as Dave said they can't claim costs at the small claim hearing...)

[davefirewalker]

I'm going to throw another thought into the works

have a look at this.......

the full text can be found here

 

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft786a.pdf

 

 

Dave

2 CONTENT OF CREDIT AGREEMENTS

2.1 What information must be included in credit agreements?

 

Reg 2(1) of the Agreements Regulations requires that documents embodying regulated consumer credit agreements (other than modifying agreements) must contain the information set out in Sch 1.

The document must also, unless it is an exempted agreement, contain statements of the protection and remedies available to debtors under the Act, in the form specified in Sch 2 (see Reg 2(3)), together with a signature box as specified in Sch 5 – see Reg 2(7).

In addition, the document must embody any security provided by the debtor in relation to the agreement – Reg 2(10).

Different requirements apply in relation to consumer hire agreements and modifying agreements – see chapters 11 and 12.

2.2 How should such information be presented?

 

Reg 2(4) requires that the information, statements of protection and remedies, and signature and separate boxes, required to be included in documents embodying regulated consumer credit agreements, must be set out in a prescribed order and using prescribed headings. They must be shown ‘together as a whole’, and (subject to certain limited exceptions) without interspersing – see Q2.3.

The lettering must be easily legible and of a colour which is readily distinguishable from the background medium. It must be of equal prominence, with the exception of headings, trade names and names of parties and any handwritten items or signatures – Reg 6(2). See also chapter 7.

Other stuff omitted………..dave

2.6 How should the information be ordered?

The information, statements of protection and remedies, and signature and separate boxes, required to be included in documents embodying regulated consumer credit agreements, must be set out in the order prescribed by Reg 2(4) and under the headings specified.

The prescribed ordering of blocks of information etc is as follows:

• nature of agreement (Sch 1 para 1)

• parties to agreement (Sch 1 para 2)

• ‘Key Financial Information’ – key financial and related particulars (Sch 1 paras 6-8B, 11-14 and 15-17)

• ‘Other Financial Information’ – other financial and related particulars (Sch 1 paras 3-5, 9, 10, 14A and 18-19A)

• ‘Key Information’ – other information (Sch 1 paras 20-24) and statements of protection and remedies (Sch 2)

• signature box (and any separate box, see Q5.3).

 

In the OFT’s view, the Regulations do not prescribe the ordering of items within each block, save that within ‘Key Information’ the information in Sch 1 paras 20-24 must precede the statements of protection and remedies in Sch 2 – see Q4.2. However, given that the consequences of a court holding otherwise would be unenforceability without a court order, creditors may wish to ‘play safe’ by setting out the information in the strict numerical order given within each block.

 

2.16 What is ‘Key Financial Information?

Reg 2(4)© requires, immediately after the heading and details of parties, the financial and related particulars set out in Sch 1 paras 6-8B, 11-14 and 15-17. These must be shown together under the heading ‘Key Financial Information’ – see also Q2.6.

The items of information are as follows – Amount of credit (paras 6 and 7), Credit limit (para 8), Term of the agreement (paras 8A and 8B), Total amount payable (para 11), Timing of repayments (para 12), Amounts of repayments (paras 13 and 14 but not 14A) and APR (paras 15 to 17).

 

2.17 What is ‘Other Financial Information?

 

Reg 2(4)(d) requires, immediately after the Key Financial Information, the financial and related particulars set out in Sch 1 paras 3-5, 9, 10, 14A and 18-19A. These must be shown together under the heading ‘Other Financial Information’ – see also Q2.6.

The items of information are as follows – Description of goods, services, land etc (para 3), Cash price (para 4), Advance payments (para 5), Total charge for credit, rate of interest etc (paras 9 and 10), Amount of repayments (para 14A but not paras 13 or 14) and Variable rates or items (paras 18 to 19A).

 

2.18 What is ‘Key Information?

Reg 2(4)(e) requires, immediately after the Other Financial Information, the information set out in Sch 1 paras 20-24 and the statements of protection and remedies set out in Sch 2. These must be shown together under the heading ‘Key Information’ – see also Q2.6.

The items of information are as follows – Security provided by the debtor (paras 20 and 21), Charges (para 22), Cancellation rights (para 23) and Amount payable on early settlement (para 24). See also chapter 5.

[InKogneeToh]

 

2.6 How should the information be ordered?

The information, statements of protection and remedies, and signature and separate boxes, required to be included in documents embodying regulated consumer credit agreements, must be set out in the order prescribed by Reg 2(4) and under the headings specified.

The prescribed ordering of blocks of information etc is as follows:

• nature of agreement (Sch 1 para 1)

• parties to agreement (Sch 1 para 2)

• ‘Key Financial Information’ – key financial and related particulars (Sch 1 paras 6-8B, 11-14 and 15-17)

• ‘Other Financial Information’ – other financial and related particulars (Sch 1 paras 3-5, 9, 10, 14A and 18-19A)

• ‘Key Information’ – other information (Sch 1 paras 20-24) and statements of protection and remedies (Sch 2)

• signature box (and any separate box, see Q5.3).

 

In the OFT’s view, the Regulations do not prescribe the ordering of items within each block, save that within ‘Key Information’ the information in Sch 1 paras 20-24 must precede the statements of protection and remedies in Sch 2 – see Q4.2. However, given that the consequences of a court holding otherwise would be unenforceability without a court order, creditors may wish to ‘play safe’ by setting out the information in the strict numerical order given within each block.

 

2.16 What is ‘Key Financial Information?

Reg 2(4)© requires, immediately after the heading and details of parties, the financial and related particulars set out in Sch 1 paras 6-8B, 11-14 and 15-17. These must be shown together under the heading ‘Key Financial Information’ – see also Q2.6.

The items of information are as follows – Amount of credit (paras 6 and 7), Credit limit (para 8), Term of the agreement (paras 8A and 8B), Total amount payable (para 11), Timing of repayments (para 12), Amounts of repayments (paras 13 and 14 but not 14A) and APR (paras 15 to 17).

 

2.17 What is ‘Other Financial Information?

 

Reg 2(4)(d) requires, immediately after the Key Financial Information, the financial and related particulars set out in Sch 1 paras 3-5, 9, 10, 14A and 18-19A. These must be shown together under the heading ‘Other Financial Information’ – see also Q2.6.

The items of information are as follows – Description of goods, services, land etc (para 3), Cash price (para 4), Advance payments (para 5), Total charge for credit, rate of interest etc (paras 9 and 10), Amount of repayments (para 14A but not paras 13 or 14) and Variable rates or items (paras 18 to 19A).

 

2.18 What is ‘Key Information?

Reg 2(4)(e) requires, immediately after the Other Financial Information, the information set out in Sch 1 paras 20-24 and the statements of protection and remedies set out in Sch 2. These must be shown together under the heading ‘Key Information’ – see also Q2.6.

The items of information are as follows – Security provided by the debtor (paras 20 and 21), Charges (para 22), Cancellation rights (para 23) and Amount payable on early settlement (para 24). See also chapter 5.

 

Hi

 

This is from the amended CCA and all these requirements above are new ones - i.e.

 

• ‘Key Financial Information’ – key financial and related particulars (Sch 1 paras 6-8B, 11-14 and 15-17)

• ‘Other Financial Information’ – other financial and related particulars (Sch 1 paras 3-5, 9, 10, 14A and 18-19A)

• ‘Key Information’ – other information (Sch 1 paras

 

Agreements made prior to this are subject to the 1983 agreements regs. If you PM me with your email address I can send you OFT docs from 2003 that explain the content requirements of all agreements prior to the amendments.

 

Regards, Pam

[davefirewalker]

InKogneeToh I tried pm'ing you but your mailbox is full......you must be very popular

 

Dave

[InKogneeToh]

So, is it safe to assume that the info in Pams post are the minimum details required, anything less than the total list, and you've got them. Then, anything missing from Jones list, and its grey area time (ie no T&C's), and it would need a judges decision as to whether it is enforcable. So, the more missing, the more leverage could be applied to said judge to dismiss the document as it does not conform to the CCA act.

 

 

Hi,

 

Yes, that's about right. Any agreement that does not contain all of the required information will be improperly executed and enforceable by an order of the court only, and as you say, the judge will consider the prejudice caused to the debtor by the particular omissions/errors.

 

But an agreement that does not contain all of the prescribed terms, or is not signed by both parties will be totally unenforceable - the court is barred from allowing enforcement.

 

The prescribed terms are:

 

• amount of credit (not applicable to credit token agreements)

• credit limit (or a statement of how it is to be determined)

• rate of interest

• repayments

 

Regards, Pam

[InKogneeToh]

InKogneeToh I tried pm'ing you but your mailbox is full......you must be very popular

 

Dave

Try again now

[Guest louis wu]

Thanks Pam,

 

Somehow, I don't think I would have stood a hope in hells chance of understanding the act, even if it was me, a desert island, and a month of sundays.

 

Thanks for all the hard work thats been/being put in by a few of you (we all know who you are:-) ) without you we would all be a lot poorer, and dumber, on the cca act.

 

Thanks to all of you

 

Louis

[m55dlc]

Hi,

 

Yes, that's about right. Any agreement that does not contain all of the required information will be improperly executed and enforceable by an order of the court only, and as you say, the judge will consider the prejudice caused to the debtor by the particular omissions/errors.

 

But an agreement that does not contain all of the prescribed terms, or is not signed by both parties will be totally unenforceable - the court is barred from allowing enforcement.

 

The prescribed terms are:

 

• amount of credit (not applicable to credit token agreements)

• credit limit (or a statement of how it is to be determined)

• rate of interest

• repayments

 

Regards, Pam

 

Pam, are you sure on the bit in bold? I thought that could be enforced by a judge. If you signed it and they didn't, enforceable with a court order

[mrxxxmas]

hi all,

thanx for your advice, i've amended the letter and sent it and a similar one to MBNA who havent sent anything back, defaulted last friday, as did monument, i've only been gone a couple of days, taken ages to catch back up, decided to send amended letters because they need a kick up the ass, but i didnt remind them about their impending criminal offence, or when their deadline was, they need to refer to previous letters for that, and like i keep getting told, let them do their jobs...lol i agree with louis we owe so much to so few, pam and dave special thanx to you...

 

also to pam...

 

Please see my comments above. No disrespect to you intended, but I am very concerned that some members are not fully reading up on, or sometimes just not understanding the relevant legislation and how/when it applies to each individual case.

 

Letters to these people MUST be factual, concise, legally relevant to the circumstances and assertive without making any threats that may not be actionable.

 

Otherwise we are just playing into their hands and they will disregard us as not knowing what we are talking about!

 

Regards, Pam

 

 

.... i'm so sorry, but there is an awful lot to read, we do try, honest, but speaking for myself, i'm as thick as they come...

 

all the best mrxxxmas

 

p.s. have you written your letter to santa yet, it seems youv'e been very good this year and you should get a decent present this year...lol

[humbleman]

comments appreciated on this please

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/71723-last-mint-reply-cca.html#post701470

[dpick]

subscribing just received application form from CRAP1 and MBNA just took the CCA fee off card balance both are in default and I am now waiting 1 calender month for them to have committed an offense.

 

dpick:-x

[InKogneeToh]

also to pam...

 

Please see my comments above. No disrespect to you intended, but I am very concerned that some members are not fully reading up on, or sometimes just not understanding the relevant legislation and how/when it applies to each individual case.

 

Letters to these people MUST be factual, concise, legally relevant to the circumstances and assertive without making any threats that may not be actionable.

 

Otherwise we are just playing into their hands and they will disregard us as not knowing what we are talking about!

 

Regards, Pam

 

 

.... i'm so sorry, but there is an awful lot to read, we do try, honest, but speaking for myself, i'm as thick as they come...

 

all the best mrxxxmas

 

p.s. have you written your letter to santa yet, it seems youv'e been very good this year and you should get a decent present this year...lol

 

Hi

 

And I am also sorry too that my post was a bit grumpy . I know that the whole CCA thing is a nightmare and how on earth the author(s) expected the average consumer to be able to understand their rights from the goobledegook contained within it is beyond me - even assuming that they knew how to get their hands on a copy in 1974 (pre-internet)!

 

It's just that I would hate to see people come unstuck because they haven't done enough of their own research AND ensured it is relevant to their own particular circumstances. We don't want to give the opposition any excuse to pick holes in our arguments!

 

As for a nice Xmas pressy this year - well one can always hope!

 

Regards, Pam

[ladybird17]

and if not at Xmas, Pam, then you shall get your reward in heaven.

LB.x

[InKogneeToh]

Pam, are you sure on the bit in bold? I thought that could be enforced by a judge. If you signed it and they didn't, enforceable with a court order

 

Hi

 

No, I have to admit ( hope Peter ain't around!) that I am not SURE about the signatures bit.

 

It's confusing because s127(3) says:

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).

 

Which implies that just the debtor's signature will do, (as long as all the prescribed terms are present).

 

But my understanding is that the agreement is not executed until both parties have signed it.

 

In support of this:

 

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.

 

This is where an agreement is sent to the debtor for his signature first and when signed it still does not become an executed agreement because the creditor still has to sign it. So an agreement that is not yet signed by both is still unexecuted!

 

Definitions:

 

“unexecuted agreement” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing;

 

“executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

 

So, an unexecuted agreement is just a prospective agreement.

 

Does this make sense to you - it certainly does to me!

 

Regards, Pam

[InKogneeToh]

and if not at Xmas, Pam, then you shall get your reward in heaven.

LB.x

 

But I wasn't intending on going there!! Far too boring!

[Guest louis wu]

Hi

 

And I am also sorry too that my post was a bit grumpy . I know that the whole CCA thing is a nightmare and how on earth the author(s) expected the average consumer to be able to understand their rights from the goobledegook contained within it is beyond me - even assuming that they knew how to get their hands on a copy in 1974 (pre-internet)!

 

Regards, Pam

 

 

My limited experience shows its not just consumers who don't understand the act, its banks, DCA's, CRA's, CC companies etc, in fact everyone that you trust to know (lol trust in the broadest sense of the word) doesn't seem to have a clue.

 

 

Louis

[zubo]

Hi everyone...

 

I decided that my document was definetley an application and have written to them stating such.......see below

 

2 April 2007

Morgan Stanley Bank Intl. Ltd.

 

Dear Sirs

Ref account **************

 

With regard to the documents that you sent me in relation to my request for information under the Consumer Credit Act 1974, I am still waiting for the signed executed agreement. You seem to have sent me an application form and a somewhat recent copy of your terms and conditions and a very recent copy of an agreement form unsigned by anyone. I’m sure this must be an oversight, so I will ask you again for the proper documents.

I draw your attention to section 61 of the consumer credit act 1974 (an excerpt enclosed for your perusal) in that

“(1) A regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.”

Be also advised that your statutory time period has elapsed and YOU are now in default and very shortly you will have committed a criminal offence. As you are now in default NO further action can be taken on this account until such a time as the original SIGNED EXECUTED documents are made available to me.

This account is still in dispute and I still forbid the passing of any data to third parties, if any data has been processed illegally since my last request I shall take appropriate action.

Further if you cannot supply the proper documents and you have entered any defaults against my name I require that you remove them immediately.

I shall be carefully considering my options and next actions.

I await your response.

 

lets see if that rattles their cage....

 

also on a further note regarding agreements have a GOOD read of the doc at this link. its the OFT guidelines for credit agreements. its the 2004 version though. the 1983 version must exist somewhere.

 

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft786a.pdf

 

IT MAKES INTERESTING READING

 

Dave

 

Dave

 

Hope you don't mind I just put your post into the CCA Workshop

 

Z

[InKogneeToh]

My limited experience shows its not just consumers who don't understand the act, its banks, DCA's, CRA's, CC companies etc, in fact everyone that you trust to know (lol trust in the broadest sense of the word) doesn't seem to have a clue.

 

 

Louis

 

Yeah! Great innit!! :D

[zubo]

Hi

 

No, I have to admit ( hope Peter ain't around!) that I am not SURE about the signatures bit.

 

It's confusing because s127(3) says:

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).

 

Which implies that just the debtor's signature will do, (as long as all the prescribed terms are present).

 

But my understanding is that the agreement is not executed until both parties have signed it.

 

In support of this:

 

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.

 

This is where an agreement is sent to the debtor for his signature first and when signed it still does not become an executed agreement because the creditor still has to sign it. So an agreement that is not yet signed by both is still unexecuted!

 

Definitions:

 

“unexecuted agreement” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing;

 

“executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

 

So, an unexecuted agreement is just a prospective agreement.

 

Does this make sense to you - it certainly does to me!

 

Regards, Pam

 

makes perfect sense especially having read the OFT guidelines

 

btw - m55/pam - hope you dont mind - crossposted into CCA Workshop

 

Z

[ladybird17]

And neither do the judiciary....

 

In recent decision of the Court of Appeal, Clarke LJ said: “…the Consumer Credit Act 1974 … has recently provided so much work for the courts …this case demonstrates the unsatisfactory state of the law at present. Simplification of a part of the law which is intended to protect consumers is surely long overdue so as to make it comprehensible to layman and lawyer alike. At present it is certainly not comprehensible to the former and is scarcely comprehensible to the latter.” McGinn v Grangewood Securities Ltd. [2002] CA Civ 522

[davefirewalker]

Hi Pam in post 317 you were unsure of signing etc. you didnt quote the whole section

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

rgds

 

Dave

[davefirewalker]

Hi Zubo...

dont mind at all you crossposting

 

just one little point..........can I have the link so I can see what its about

 

dave